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HARVARD LAW LIBRARY
Received NOV ii y ]S\\
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THE INDIAN EVIDENCE ACT,
NO. I OF 1872,
AS AMENDED ,BY ACT XVIII OF 1872,
TOGETHER WITH AN
INTRODUCTION AND EXPLANATORY NOTES, TABLE OF CONTENTS,
APPENDIX, AND INDEX.
BY
HENRY STEWART CUNNINGHAM, M. A.,
BARRISTEH-AT-LAW, ADVOCATE GENERAL OY MADRAS.
8ECONO KOITION,
-0
PMm :
HIGGINBOTHAM AND CO.
1873.
[All rights of translation reserved]
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cl^
MOV z\} 1911
MADRAS:
miNTED BY HIGGINBOTHAM AND CO.,
165, MOVNT KOAD.
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PREFACE TO THE SECOND EDITION.
In the present Edition some passages, which, in the Intro-
duction and Notes of* the former Edition did not suflSciently
explain the meaning of the Act, have been set forth in a
fuller and, it is hoped, a cleareV manner ; the Rulings of the
several High Courts upon the Act have been embodied ;
and in the note on presumptions, under Section 114, the
principal presumptions, judicially recognized in this country,
have been arranged in a manner to allow of speedy and
convenient reference. The opportunity has been taken to
remedy the deficiencies, to which exception w£ts justly taken
in the original Index.
H. S. C.
1st August 1873.
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PREFACE.
The object of this work is to present in as concise a form
as possible such a view of the recently-passed Evidence Act
as may be intelligible and interesting to law-students and
others, who have occasion to make themselves acquainted
with that enactment.
However simple in arrangement and comprehensive in
detail an Act may be, it cannot supersede the necessity of
some previous acquaintance with the subject for which it
provides, with the objects and reasons of its requirements,
and with the principles on which it proceeds ; and though
the free use of Illustrations supersedes, to a large degree,
the commentator's task, there must still be ma^^y points to
which a student's attention may be usefully directed, ijais-
takes against which he may be warned, and difficulties in
which he may be glad of assistance.
Nothing either in the Introduction or the Notes can lay
the least claim to originality. The Introduction is grounded
on the Reports of the Select Committee and on the Speeches
in the Legislative Council in which, at various stages of the
Bill, Mr. Stephen explained its principles and arrangement.
In the Notes, I have merely endeavoured to explain the con-
nection of one section with another, to clear up any obscuri-
ties of expression, and to point out the respects in which the
present measure differs from the English Common Law or
^ from that previously in force in Indian Courts. I have occa-
sionally introduced some of the more familiar English
rulings, wherever it seemed that they would assist in the
understanding or application of a section. In the Appendix
I have collected a few measures connected with the subject
of Judicial Evidence, which legal practitioners may find it
convenient to have at hand.
To those who are already acquainted with the subject, I
do not presume to offer assistance ; they will find nothing
in these pages which is not familiar to them ; but I venture
to hope that the large class of persons, who take up the study
of the Law of Evidence for the first time, may find in this
volume some assistance in mastering this important Branch
of Legal Study.
H. S. C.
Madras, September 1, 1872.
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LIST OF ABBREVIATIONS.
A. and E Adolphus and Ellis' Reports.
B. and A Bamewell and A dolphus' Reports.
B. and C Barnew6ll and Cresswell's Reports.
Beav. Beavan's Reports.
Benth. Rat. Ev Bentham's Rationale of Evidence.
Bomb, H. C. R.... Bombay High Court Reports,
B. L. R Bengal Law Reports.
Broom L. M Broom's Legal Maxims.
C. P. C Civil Procedure Code, 1859.
Cr. P. C Criminal Procedure Code, 1872.
CM. and R Crompton, Meeson and Roscoe's Reports.
C . and F Clarke and Fenelly 's Reports, House of Lords.
C. and K Carrington and Kirwan's Reports.
C. and P Carrington and Payne's Reports, N. P.
E. and B Ellia and Blackbume's Reports, Q . B.
H, L. C. House of Lords' Cases.
L. J., Q. B .'. Law Journal, Queen's Bench.
L . J . , Ex I^aw Journal, Exchequer.
L. J., C . P Law Journal, Common Pleas .
M. H. C. R Madras High Court Reports.
M. L A Moore's Indian Appeals. *
M. P, C . C Moore's Privy Council Cases .
M. and G Manning and Granger's Reports, C P.
M . and W Meesson and Welby's Reports, Exc.
M. and R Manning and Ryland's Reports, Q. B.
Scott, N. R, Scott's New Reports, C. P.
Suth. W. R Sutherland's Weekly Reporter .
Tayl Taylor on Evidence.
Y. and C Younge and Collyer's Reports .
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CONTENTS.
Preamble.
PART I.
EELEVANCY OP FACTS.
CHAPTER I.— Preliminary.
Sectiok.
1. Short title.
Extent.
Commencement of Act.
2. Repeal of enactments.
3. Interpretation-clause.
4. " May presume."
" Shall presume."
" Conclusive proof."
Chapter II.— Of the Relevancy of Facts.
5. Evidence may be given of facts in issue and relevant facts.
6. Relevancy of facts forming part of same transaction.
7. Facts which are occasion, cause, or effect of facts in issue.
8. Motive, preparation and previous or subsequent conduct.
9. Facts necessary to explain or introduce relevant facts.
10. Things said or done by conspirator in reference to com-
mon design.
11. Facts, inconsistent with relevant facts, are relevant.
12. In suits for damages, facts tending to enable Court to
determine amount, are relevant.
1 3. Facts relevant when right or custom is in question.
14. Facts showing existence of state of mind, or of body or
bodily feeling.
15. Facts bearing on question whether act was accidental or
intentional.
16. Existence of course of business when relevant. «
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X CONTENTS.
Section.
Admissions.
17. Admissions defined.
18. Admission—
' by party to proceeding or his agent ;
by suitor in representative character ;
by party interested in subject-matter ;
by person from whom interest derived.
19. Admissions by persons whose position must be proved as
against party to suit.
•20. Admissions by persons expressly referred to by party to
suit.
21. Eelevancyof admissions against or in behalf of persons
concerned.
22. When oral admissions as to contents of documents are
relevant.
23. Certain admissions not relevant in Civil cases.
24. Confession caused by inducement, threat, or promise irre-
levant.
25. Confession made to a Police officer not to be used as
evidence.
26. Confession made by accused while in custody of Police,
not to be used as evidence.
27. So much of statement or confession made by accused as
relates to fact thereby discovered, may be proved.
28. Confession, made after removal of impression caused by
inducement, threat, or promise, relevant.
29. Admission otherwise relevant not to become irrelevant
because of promise of secrecy, &c.
30. Admission affecting person making it and others jointly
under trial for same offence.
31. Admissions not conclusive proof, but may estop.
Statements by Persons who cannot be galled as Witnesses.
32. Cases in which statement of relevant fact by person who
is dead or cannot be found, <fec., is relevant.
When it relates to cause of death ;
or is made in course of business ;
1
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CONTENTS. xi
Section.
or is against interest of maker ;
or gives opinion as to public right or custom or matter
of general interest.
or relates to existence of relationship.
or is made in will or deed of deceased person ;
or relates to transaction mentioned in section 13, clause (a) ;
or is made by several persons and expresses feelings rele-
vant to matter in question.
33. Evidence in a former judicial proceeding when relevant.
Statements made under special Circumstances.
34. Entries in books of account when relevant.
35. Entry in public record, made in performance of duty
enjoined by law, when relevant.
36. Maps and plans when relevant.
37. Statement as to fact of public nature contained in any
Act or Notification of Government, when relevant.
38. Statements in law-books.
How MUCH OP A Statement is to be proved.
39. What evidence to be given when statement forms part of
a conversation, document, book, or series of letters
or papers.
Judgments of Courts of Justice when relevant.
40. Previous judgments relevant to bar a second suit or trial.
41. Judgments in probate, matrimonial, admiralty or insol-
vency Jurisdiction.
42. Judgments relating to public matters.
43. Other judgments, not relevant.
44. Fraud, collusion, or incompetency of Court may be proved.
Opinions op third Persons when relevant.
45. Opinions of experts.
46. Facts bearing upon opinions of experts.
47. Opinion as to handwriting.
48. Opinion as to existence of right or custom when relevant.
49. Opinions as to usages, tenets, <&c.y when relevant.
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xii CONTB^TS.
Section.
50. Opinion on relatiouship, when relevant.
51. Oroundsof opinion, when relevant.
OHARA.CTER WHEN BBLEVANT.
52. In civil cases, character to prove conduct imputed, irre-
levant.
53. In criminal cases, previous good character relevant.
54. Previous conviction in criminal trials relevant, but not
previous bad character, except proof of good cha-
racter be given.
55. Character as affecting damages.
PARTH.
ON PROOF.
Chapter III. — Facts which keed not be proved.
56. No evidence required of fact judicially noticed.
57. Facts of which Court must take judicial notice.
58. Facts admitted.
CHAPTER IV.— Op oral Evidence.
59. Proof of facts by oral evidence.
60. Oral evidence must be direct.
CHAPTER V. — Of documentary Evidence.
61. Proof of contents of documents.
62. Primary evidence.
63. Secondary evidence.
64. Proof of documents by primary evidence.
65. Cases in which secondary evidence relating to docu-
ments may be given.
66. Rules as to notice to produce.
67. Proof of signature and handwriting of person alleged to
have signed or written document produced.
68. Proof of execution of document required by law to be
attested.
69. Proof where no attesting witness found,
70. Admission of execution by party to attested document.
71. Proof when attesting witness denies the execution.
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CONTENTS. Xlll
Section.
7?^. Proof of document not required by law to be attested.
73. Comparison of handwritings.
Public Documents.
74. Public documents.
75. Private documents.
76. Certified copies of public documents.
77. Production of such copies.
78. Proof of other oflScial documents.
Presumptions as to Documents.
79. Presumption as to genuineness of certified copies.
80. Presumptions on production of record of evidence.
81. Presumption as to Gazettes.
82. Presumption as to document admissible in England with-
out proof of seal or signature.
83. Proof of maps made for purposes of any cause.
84. Presumption as to collections of laws and reports of
decisions.
85. Presumption as to powers of attorney.
86. Presumption as to certified copies of foreign judicial
records.
87. Presumption as to books and maps.
88. Presumption as to telegraphic messages.
89. Presumption as to due execution, &c., of documents not
produced.
90. Presumption as to Documents thirty years old, produced
from proper custody,
Chapter VI. — Op the Exclusion op oral by documentary
Evidence.
91. Evidence of terms of written contract.
92. Exclusion of evidence of oral agreement.
93. Exclusion of evidence to explain or amend ambiguous
document.
94. Exclusion of evidence against application of document to
existing facts.
95. Evidence as to document unmeaning in reference to
existing facts.
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xiv CONTENTS.
Section.
96. Evidence as to application of language which can apply
to one only of several persons.
97. • Evidence as to application of language to one of two sets
of facts to neither of which the whole correctly
applies.
98. Evidence as to meaning of illegible characters, &c,
99. Who may give evidence of agreement varying terms of
document.
100. Saving of provisions of Indian Succession Act relating
to wills.
PART in.
PRODUCTION AND EFFECT OF EVIDENCE.
Chapter VII. — Of the Burden op Proof.
101. Burden of proof.
102. On whom burden of proof lies.
103. Burden of proof as to particular fact.
104. Burden of proving fact to be proved to make evidence
admissible.
103. Burden of proving that case of accused comes within
exceptions.
1 06. Burden of proving fact especially within knowledge.
107. Burden of proving death of person known to have been
alive within thirty years.
108. Burden of proving that person is alive who has not been
heard of for seven years.
109. Burden of proof as to partnership, tenancy, and agency.
110. Burden of proof as to ownership.
111. Proof of good faith in transactions where one party is in
relation of active confidence.
112. Birth during marriage, conclusive proof of legitimacy.
113. Proof of cession of territory.
114. Court may presume existence of certain facts.
Chapter VIII. — Estoppel.
115. Estoppel.
116. Estoppel of tenant.
117. Estoppel of acceptor of bill of exchange, bailee, or licensee.
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CONTENTS. XV
Chapter IX. — Of Witnesses.
Section.
118. Who may testify.
119. Dumb witnesses.
120. Married persons in Civil and Criminal proceedings.
121 . Judges and Magistrates.
122.' Communications during marriage.
123. Evidence as to affairs of State.
1 24 . Official communications.
125. Information as to commission of offences.
126. Professional communications.
127. Section 126 to apply to interpreters, &c.
128. Privilege not waived by volunteering evidence.
129. Confidential communication with legal advisers.
130. Production of witness's title-deeds.
131. Production of documents which another person, having
possession, would be entitled to refuse to produce.
132. Witness not excused from answering on ground that
answer will criminate.
Proviso.
133. Accomplice, a competent witness.
134. Number of witnesses.
Chapter X.— Op the Examination op Witnesses.
135. Order of production and examination of witnesses.
136. Judge to decide as to admissibility of evidence.
137. Examination-in-chief.
Cross-examination.
Re-examination.
138. Order of examinations. Direction of re-examination.
139. Cross-examination of person called to produce a document.
140. Witnesses to character.
141. Leading question.
142. When they must not be asked.
143. When they may be asked.
144. Evidence as to matters in writing.
145. Cross-examination as to previous statements in writing.
146. Questions lawful in cross-examination.
147. When witness to be compelled to answer.
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xvi CONTENTS.
Section.
148. Court to decide when question shall be asked and when
witness compelled to answer.
149. Question not to be asked without reasonable grounds.
150. Procedure of Court in case of question being asked with-
out reasonable grounds.
151. Indecent and scandalous questions.
152. Questions intended to insult or annoy.
153. Exclusion of evidence to contradict answers to questions
testing veracity.
154. Questions by party to his own witness.
155. Impeaching credit of witness.
156. Questions tending to corroborate evidence of relevant
fact admissible.
157. Former statements of witness may be proved to corrobo-
rate later testimony as to same fact.
158. What matters may be proved in connection with proved
statement relevant under sections 32 or 83.
159. Refreshing memory.
When witness may use copy of document to refresh memory.
160. Testimony to facts stated in document mentioned in sec-
tion 158.
161. Right of adverse party as to writing used to refresh
memory.
162. Document to be brought to Court, notwithstanding objec-
tion to its admissibility.
Translation of document for the purpose of deciding on
its admissibility.
163. Document called for and inspected must be given in evi-
dence.
164. Document, production of which was refused on notice,
cannot be given in evidence.
165. Judge's power to put questions or order production,
166. Power of jury or assessors to put questions.
Chapter XI.— Op improper Admission and Rejection of
Evidence.
167. No new trial for rejection or improper reception of evidence.
Schedule.
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INTRODUCTION.
1. The object of every Judicial inquiry is to produce
in the mind of the Judge or other deciding
ci^mfirii.'''^" authority, a beUef as to the existence or
non-existence of certain facts, on which the
rights or liabilities of the parties and the decision of the
case depend, and which are termed the facts in issue:
2. This belief is produced by presenting to the Judge's
TT • V V « mind various facts, which are the materials
prSaTed? out of which his beUef is to be formed. The
Judge examines these various facts, and the
grounds on which he is asked to believe them, weighs those
which are contradictory against one another, estimates the
corroborative effect of those which confirm one another, and
decides at last which of them he wholly believes or dis-
believes, which of them he considers partially true, which
of them he thinks so doubtful that he puts them aside, what
are the inferences suggested by those which he considers
true, and what, upon the whole, he believes about the matter.
3. For instance a corpse, with a dagger wound in it, is
jj. . found. A and B say that they saw C stab
us ra ion. ^^^ ^^^^ whose corpse it is : D and E say
that at the time C was asleep in their house ; F says that he
sold a dagger, fitting the wound, to C the day before ; G says
that the dagger was sold to some one else ; the footmarks
at the scene of the murder correspond with Cs ; C on being
questioned as to his absence from home, prevaricates; his
clothes are bloody ; there was a feud between his family
and that of the deceased ; there had been a quarrel, &c., &c.
Now what the Judge does here is to get all this material
before his mind and give each part of it its proper weight.
How much importance is to be given to A and B's state-
ment, how much to that of D and E ? which is telling the
truth F or G ? Supposing the evidence a*? to the dagger, the
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2 INTRODUCTION.
footmarks, and C's absence from home, and the prevarica-
tion in explaining it, the femily feud, &c., to be true, what
is the inference to be drawn from them as to his guilt ? The
result of this process is the Judge's belief.
4 This process of forming a belief in Judicial cases is
Difficulty of often very difficult and unsatisfactoiy ; the
fonning belief in degree of certainty attainable is not a high
Judicial cases. ^^e ; it always falls short of the absolute cer-
tainty attained by mathematical demonstration, and even of
that high degree of certainty reached in scientific inquiries
by means of experiment, comparison and other processes.
A chemist, who suspects that a particular combination of sub-
stances produces some result, can go on experimenting
tiU he arrives at a degree of certainty so high as to be almost
demonstration ; a geologist, who suspects that certain forma-
tions are produced by some particular physical causes, can
look about elsewhere to countries where the same physical
causes have existed, or where perhaps they at present are at
work ; a surgeon, who wants to be sure Uiat one nerve has
to do with sensation and one with movement, can go on
trying till he has made sure. No such resource is available
in judicial enquiries ; it is on a certain limited number of
facts that the conclusion must be based ; and these facts are
often too few and too untrustworthy to form a sound basis
of conviction. A judicial inquiry, accordingly, is, as compared
with a scientific inquiry, a very rough process ; the risk of
error is considerable, and the degree of certainty arrived at by
it is scai'cely ever such as would justify a man of science in
saying that a thing was proved. The utmost that can be
had in a judicial case is the independant testimony of
respectable and disinterested witnesses, corroborated by
circumstances which make it probable that they are telling
the truth; but the most respectable and independant
witness may be deceived, and the witnesses with whom a
Judge has to deal are, in many instances, neither respectable
nor disinterested. On the other hand, surrounding circum-
stances often so happen as to be most treacherous guides,
as the well-known stories of the miscarriages of justice,
occasioned by circumstantial evidence, sufficiently demon-
strate. In many cases, moreover, there are no corroborative
circumstances, and the judge has to pick out the truth from
the statements of people, who, he knows, are trying to
deceive him. In such cases his belief is scarcely more
than the adoption of one of two conflicting improbabilities.
He may have to say to the parties A and B, " Both of you
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INTRODUCTION. 3
have been lying. Both your stories are improbable, but on
the whole, I think, that a part of A's is the least uiilikely,
and I therefore decide in his favor."
5. Still, however low be the degree of certainty attain- .
able, a decision, one way or the other, must
bf^ativTar be forthwith come to. Here, again, judicial
inquiries differ from scientific; the man of
science constantly comes to the conclusion, that the material
for an opinion is not available, and that his judgment must
remain in suspense, His only knowledge about such a point
is that he does not, and with his existing means, cannot know
about it ; he rests without any further opinion. But this
the Judge cannot do ; one way or other a decision
must be given; if he acquits a man accused of murder,
he takes the responsibility of letting a crime (if crime there
has been) go unpunished, and turning a criminal loose
on society ; if he decides in favor of the defendant, because
the plaintiff has not made out his case strongly enough, he
takes the responsibility of keeping a man out of what may
be his rights. A Judge must always decide something, and
he must often do so on grounds which are very insufficient
for a sound opinion. ^
6. Such beingthe Judge'sposition, whatamountof certain-
What degree of ^^^ ?^' *^ ®P®^^ correctly, what degree of pro-
probability is es- bability, is he to regard as essential to belief,
sential to belief. The answer to this question is given in
-^ ,. . * . England by the extremely rough method of
Verdict of a jury. , P. , •', "^j ^ i.i t
locking twelve average and presumably dis-
interested men into a room and obliging them by various
stringent rules to come forthwith to a conclusion. According
to this system a thing is " proved" when twelve average
Englishmen, chosen by lot, can be induced, under the
various conditions affecting trials by Jury, to come to an
unanimous verdict about it.
7. In India, except in the rare cases of Criminal trials
X T ^- x^ ^y Jury, the Judge has the responsibility of
In India the j •!• .i. *»^i. r» 1 1 j.i "^
Judge to decide, deciding on the facts of the case thrown upon
him. He must decide in each instance for
himself whether the existence of the fact is " so probable that
a prudent man ought under the circumstances to act upon
the supposition of its existence,"* in which case he may treat
it as proved ; or "so improbable that a prudent man ought
* See definition of * proved* and disproved in Section 3.
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4 INTRODUCTION.
under the circumstances, to act on the supposition that
it does not exist/' in which case he may treat it as
disproved: what that degree of probability is in each
case is a question which the law cannot decide for him.
The decision of this must depend on his own good sense,
good judgment, insight and experience.
8. One test, by which to ascertain whether a thing is
TestM to whe. really proved or not, is to take the facts of
ther a thing is the case, and see whether any other hypo-
proved, thesis, except that of the truth of the thing,
whose proof in question, will explain them. If there is any
such hypothesis within the range of ordinary probability,
the thing cannot be regarded as proved. For instance A is
accused of killing B. C gives evidence that he saw A follow
B and stab him in the back and that B thereupon fell and
died. Now here there are only three hypotheses which
can .be adopted about the case ; either (1) C is telling a
lie, or (2) he was deceived, or (3) A did kill B. Dkectly the
first two hypotheses are disproved or shown to be so highly
improbable that they may be treated as disproved, the truth
of the third may be regarded as proved. Or, to tate a some-
what less simple case, supposing that a person is found dead
under such circumstances that (1) either A killed him or
(2) some other person killed him, or (3) he committed suicide.
Here again are three hypotheses any one of which, if true,
would explain the facts of the case ; it is only, therefore,
when the second and third are got rid of that we are driven
of necessity to adopt the first : we conclude that A killed
the deceased as soon as there is no other reasonable theory on
which we can account for his death ; so long as any such
theory exists, the fact of A's having killed him is not proved.
9. Such modes, however, of testing whether a thing is
proved or not lie almoi^t beyond the scope of our present
inquiry ; they are rather rules for the conduct of the reason-
ing process than rules of evidence, and belong to the province
of the logician rather than to that of the legislator. The
law does not and cannot teach a Judge how to think : it
merely deals with the material of thought
10. The discovery of truth, both in Criminal and Civil
The law lias at ^^^^> ^ ^ matter of such extreme interest
all times interest, ^o society that it is natural enough that,
ed itself in the from the earliest times, the laws of every
trntP"^ ^^ *^^ country should show signs of the anxiety of
Government to regulate and assist it. Indeed
Digitized by VjOOQIC
INTRODUCTION. 5
till rights can be to some extent ascertained and enforced
and crimes discovered and punished^ society can be scarcely
said to exist.
11. In the ruder stages of society the Law supplied van-
Modes in which ^^^ de vices for the discovery of disputed facts
the Law assisted which seem to US merely foolish or grotesque,
in the discovery Men were put to fiffht each other, or to sub-
of truth. ^j^ ^^ ^^^^^g ^^^^^ y^^ ^j^j^j^ j^ ^^ g^p^^^
stitiously supposed that the real facts of the case would be
revealed. Such tests are, it is needless to say, the very worst
possible device for finding out the truth that the wit of man
could imagine. The terror inspired by tEem may occasion-
ally induce a guilty person to confess ; but they act with
equal force on the minds of the innocent, and are simply
ready instruments for fraud, imposture, and cruelty. They
have happily passed away, along with the other savage follies
which characterize the uncivilized stages of human society.
12. Another barbarous contrivance for getting at the
truth, which the Law of England at one time
^^ ^^®' countenanced was Torture. This methed
was no doubt in many instances efficacious ; it was practised
up to a comparatively recent period of English history, and
the utmost efforts of Government have not succeeded in pre-
venting recourse being still occasionally had to it in this
country. The objections to it are its brutality, its injustice,
and the danger of leaving so powerful an implement of op-
pression in the hands of officials who are very likely to use
it oppressively. It is, moreover, a most fallacious guide, as
luckless wretches, in the throes of agony, have been frequently
known to admit anything for the sake of immediate re-
lief. At any rate the Law has now definitely abandoned
it, as a means of discovering the truth, and has taken extra-
ordinary precaution^ against its employment by the Police,
whose duties might be likely to tempt them to make use
of it.
13. Another mode in which the law used, in former times,
.to interfere considerably with the discovery
witnesses.^^ ^ of truth in Judicial Proceedings, was by the
exclusion of particular classes of witnesses.
Race, creed, profession, social position, sex, age, special
diseases or bodily defects, interest in the matters in dispute,
relationship to the parties concerned, have all at different
times been regarded as grounds for disabling pei'sons from
giving evidence. The propriety of such disabilities was long
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6 INTRODUCTION.
and hotly contested ; the assailants of the system of exclusion
pointed out that any rule of exclusion must often shut out
witnesses whose evidence would be in the highest degree
important and trustworthy ; that it must be for the interests
of Justice that the truth, by whoever spoken, should be
known, and that the reasonable thing to do with evidence
coming from a suspicious quarter, is, not to exclude it, but
to take it for what it is worth.
This doctrine gradually gained way : one ground of dis-
ability after another disappeared ; and it is now only in
certain exceptional cases that any person is, according to
English Law, disqualified from giving evidence.
In India, where the functions of Judge and Jury are
almost invariably united, the unreasonableness of excluding
any evidence was still more apparent, as the Judge is
presumably a person skilled in dealing with testimony,
thoroughly acquainted with the springs of human conduct
and far more capable than a Jury of allowing to each
person's statement its due weight and no more. In England
certain evidence is excluded, not because it is worthless, but
because Juries generally cannot be trusted to make a pro-
per use of it, and therefore the only thing to do is to keep
it away from them altogether. When the same official is
Judge and Jury, such evidence may safely be admitted, for
what it is worth. Accordingly, by the law of India as it now
stands, every person, capable of undei'standing the questions
put to him and of giving rational answers, is allowed to give
evidence, whatever be his position or antecedents, his relation
to the parties concerned or his interest in the result of the
proceedings. Even accused persons are allowed to make
statements and to be examined by the Court, though the
untrustworthy nature of statements made under such cir-
cumstances is emphasized by their exclusion from the defini-
tion of *" Evidence," and by the prohibition of the solemnity
of an oath or affirmation. The present Act has carried this
principle to its utmost length by providing in Section 30,
that, where persons are being jointly tried, a confession by
one of them, affecting himself and others, " may be taken
into consideration" as against the co-accused as well as
against himself This has been objected to as dangerous ; but
a little consideration will show that, inasmuch as it is practi-
cally impossible to prevent such a confession having some
effect on a Judge's mind, the safer course is to recognize this
necessity, sanction his taking it into consideration, and
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INTRODUCTION. 7
remind him at the same time how slight that consideration
ought to be.
14. At the present day one of the most important ways
in which the Law assists in the discovery of
Evi^"^^'' the truth in Judicial Proceedings is by
making arrangements before-hand for the
preparation and preservation of especially good evidence,
so that, if ever a dispute arise, the most trustworthy
material for settling it will be ready to hand. This is
what is done by the careful and elaborate record of
Title to Land, the formation, maintenance,
^^^ ^ ^' and correction of which forms so marked a
feature of our land-revenue system. Whenever a dispute
about land,succession,inheritance or family custom arises, the
law has provided the means of obtaining the most authentic
evidence on the subject. It is easy to see how enormous a
help to the ascertainment of the truth and to the cause of
justice is thus given, and how great a public injury is
inflicted wherever, through the neglect of the Administration,
this Record is allowed, as has unfortunately been the case in
some parts of India, to become inaccurate and incomplete.
15. The same result is effected by the Registration Act,
by which any p^son, interested in a docu-
Kegis a ion. ment, has the means, at a small outlay, of
E lacing its authenticity beyond dispute and so far armiug
imself with incontestably good evidence, should a dispute
about it ever arise. With a view to increase the beneficial
effects of Registration, the Law provides that, in the case of
the more important classes of documents, it shall be compul-
sory; in other wordsit will not leave itto thediscretion of par-
ties toprovidethemselves with this superior order of evidence,
or not, as they please ; but in their own interests and those
of society at large, compels them in every instance to do so.
16. With a view to the same object the Law obliges
. . people in certain important transactions,
timeroSfgato]^' *^ record the matter in writing, and in some
cases, to add the further security of at-
testation. Thus in cases to which the Indian Succession Act
applies, a testamentary disposition of property can be proved
only by a document attested in conformity to the requirements
of the Act; so again, an acknowledgment of indebtedness,
in order to take a case out of the operation of the Limitation
Law must be in writing and signed. The object of theso
provisions is to compel people to resort to the safest possible
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8 INTRODUCTION.
methods of recording their intentions, and so to facilitate the
discovery of truth, should the matter ever come into dispute.
17. Under the same heading may be placed the provision
of the Code of Civil Procedure for declaratory
De^reefl*''**'*''^ decrees. Section 15 of that Act enables the
Civil Courts " to make binding declarations
of right without granting consequential relief/' and thus a
decree may be obteined, declaiing the rights of a party who
complains of no present wrong and asks for no immediate
relief, but merely wants to have his position put beyond the
possibility of dispute hereafter.
18. Further provision in the same direction might with
Suit for perpe- advantage be made in the form of suits for
tuation of Testi- the perpetuation of testimony, by which, in
mony. England , when a person has reason to believe
that the testimony of some other person, which is of impor-
tance to him, is not likely at a later period to be available,
he can get that evidence recorded with all the safeguards
and solemnity incidental to a judicial proceeding.
19. Again the Law assists materially in the discovery of
the truth by putting stringent compulsion
* *' upon any one, who knows about a matter
under inquiry, to speak, and to speak the truth : it com-
pels witnesses to come to Court, to answer questions, to
produce documents. With a view to increase the chances
of truthfulness, it, previously to the recent legislation,
obliged witnesses, and it still allows them, to appeal
to heaven, and to imprecate its displeasure upon them-
selves, if they are not telling the truth; it further
enables the party to a dispute to make use of any oath which
is considered especially binding by persons of his race or
persuasion, so long as it is not offensive and does not pur-
port to affect another person ; the party may also offer to
be bound by such an oath, if the opposite painty will take
it : thus the Law utilizes whatever incentive to truth-telling
religion or superstition in any case can be supposed to give :
and it brings an earthly incentive into play by punishing
with heavy penalty any false statement.
20. The tendency of opinion of late years has been
against the efficiency of oaths as a means of
coSpuw! '''''' inducing truth-telling, at any rate against
the propriety of making an oath essen-
tial to the validity of testimony. Various degi-ees of
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INTRODUCTION. 9
relief were from time to time afforded to those whose
consciences were offended by an oath. As long ago as 1840
Hindus and Mahummadans were exempted from taking
certain oaths, which were considered objectionable, and a
solemn affirmation was substituted for an oath. A similar
indulgence was extended on various occasions in England to
the scruples of several Christian sects. As the law now
stands in this country Hindus and Mahummadans affirm ;
and all other persons swear, in such form as is, from time to
time, prescribed by the several High Courts, Any person
however may, without assigning a reason, object to an oath,
and make an affirmation of the facts which he wishes to prove.
21. The law of Evidence is so essentially connected with
Law of Evi- ^^*^ ^^ Procedure, that various provisions of
dence connected ^^e Procedure Codes are really neither more
with that of Pro- nor less than rules of Evidence, and might
cedure. with equal propriety be inserted in an Evi-
dence Act : as, for instance, the Rule in Act VIII of 1859,
which requires that all documents reUed on in a case must be
produced at the first hearing, the object of which is, obviously,
to prevent evidence being manufactured as the case goes on ;
or, again, the provisions in the Code of Criminal Procedure as
to the mode in which a witness' testimony and the accused's
statement shall be recorded ; as to the admissibility of depo-
sitions made at an earlier stage of the proceedings and the
use that may be made of them ; as to the mode in which a
Civil Surgeon's statement may be proved, or evidence may be
taken by commission in certain cases.
22. The main body, however, of the rules affecting Evi-
T? 1' ^ n dence have been, up to the present time,
monff embodied in the decisions of the English
Courts, laying down the English Common
Law on the subject, and in the text-books in which these
decisions were collected and discussed. Several Acts of the
Indian Legislature, passed from time to time, had modified
the provisions of the English law in certain particulars ; but
they did not profess to set forth what the English Law
was; and no complete or systematic enactment on the
subject has hitherto found a place in the Indi9Ji Statute
Book. This gap in the substantive Law of the country the
present measure is intended to fill
23. The structure of the Act will be best understood by
observing, that it is divided into three
tht'TSf "'''''* principal divisions, the first of which
answers the question, " what is the permissi-
• 2
Digitized by VjOOQIC
10 INTRODUCTION.
ble material of belief ?" the second of which answers the ques-
tion " how is that permissible material of belief to be brought
to the Judge's mind T and the third contains directions as to
the examination of witnesses, points out on which party the
burthen of proof is, in each case, to lie, and directs tiie Judge,
in certain cases, to draw particular inferences from facts
brought to his notice. This division is the main principle,
on which the whole Act proceeds, and unless it is thoroughly-
understood and kept in sight throughout, the arrangement
of the whole will be unintelligible.
24. The matter may be stated more fully thus. The
Evidence of production of a belief in the existence or non-
facts in issue al- existence of certain facts being, as we have
ways admissible, gg^jj^ ^^ object of every Judicial inquiry,
and belief in the existence of a fact being the result of a
mental process on certain materials presented to the mind,
the first thing to be decided is what are those materials to
be. In the firet place, direct* evidence of the actual facts in
issue will of course be admissible. Where the issue is whether
a thing happened, the most obvious and direct way of pro-
ducing belief in its occurrence is for some one, who is able to
assert, of his own knowledge, that it did happen, to come
into Court and say so. The only question which the Judge
has then to settle is as to the degree in which the witness's
account can be trusted : if the witness Wfi« not deceived as
to what he saw, if he remembers it accurately, and if he is
telling the truth, the fact is proved ; as, for instance, fact in
issue, " Did A kill B T Witness, " I saw A take a knife and
stab B in the heart, and B fell back dead." Here the only
questions are, was the witness deceived as to what he saw,
is his recollection inaccurate, is he lying ? If not, the fact
in issue is proved.
25. But, secondly, there are, surrounding every fact, a
t f ts ii^inibcr of other facts which bear upon it,
evan ac . ^^^ connected with it more or less inti-
mately, and in a higher or lower degree aflfect its probability.
They are not facte in issue, but they are facte from which
facte in issue may be inferred. They constitute what the
Text-books terin " circumstantial" evidence, as opposed to
evidence of the actual facte in issue which is termed " direct"*
* This use of the word " direct" must not be confounded with the
sense in which it it used in Section 60 of the present Act, where it is
provided that oral evidence must in every case be " direct," Lt, be of
sometMng which the witness himself saw, heard or perceived by some
other sense, or of which he was mentally conscious.
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INTRODUCTION. 11
or " immediate ;" they are, in every instance an important
auxiliary to, and cheek upon direct evidence, and when
plentiful enough, and strong enough, they may supersede it,
altogether.
With facts of this character, however, the Judge has a two-
fold process to perform ; first, as with the other class, he has
to decide on the accuracy and truthfulness of the witness ;
and then, assuming the accuracy and truthfulness of the
witness, he has to decide on the proper inference to be drawn
from the fact stated. Suppose, for instance, the fact in issue
to be, " did A kill B ?" and the evidence to be as follows ;
" A came running out of the house ; he was much excited
and splashed with blood ; in his hand was a bloody knife ;
all the doors were locked but that out of which A came ;
no one else was in the house ; B was lying on the floor with
her hands tied behind her and her throat cut." Now in
this case there is no direct statement of the fact in issue ;
the statement* is of facts from which the fact in issue may
be inferred, and the Judge has to decide, first, whether the
witness is telling the truth, and secondly, if he is telling the
truth, what is the proper inference to be drawn from the
facts stated : assuming all that the witness says to be true,
does it prove that A filled B ?
26. Great emphasis has been laid on the distinction be-
tween these two classes of evidence, direct
Evidenc?** ^^^ circumstantial, and it has sometimes
been ui-ged that it is never safe to trust to
circumstantial evidence in the entire absence of direct ; in
other words, that unless there is some one who is in a posi-
tion to assert directly of his own knowledge that the fact in
issue did happen, no amount of circumstantial evidence will
justify the inference that it has happened.
27. But this is obviously going too far. There are many
crimes which are committed under circumstances that pre-
clude the possibility of evidence being given directly on tho
issue whether they happened or not, yet which allow of
a perfectly safe inference been drawn from surrounding
circumstances. A house is broken into and a golden cup
stolen : ten minutes after, a man is caught with implements
of house-breaking in one pocket and the cup in another : he
can give no account of them or himself, he has been twice
before convicted of house-breaking : duplicates of pawned
property, proved to have been stolen, are found upon him :
his guilt is surely just as certain as if twenty people came and
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12 INTRODUCTION.
swore they saw him do it. Stories areoften told of the mistakes
to which circumstantial evidence, apparently of the most con-
clusive kind, has given rise. But the occurrence of such
accidents proves nothing but that all Judicial decisions,
however arrived at, are Hable to error, and that all that can
be done is to act as in each instance appears most reason-
able. If circumstances sometimes lie, i, e., so happen as
to suggest a deceptive inference, how much ofteneris a Judge
led astray by the inaccui'acy or fraud of witnesses in testify-
ing directly to a fact in issue. In India, at any rate, it is
more to the surrounding facts than to evidence given directly
on a fact in issue that a Judge will look to ascertain the
truth.
28. It has been sometimes laid down by way of restrict-
ing the effects of circumstantial evidence.
Corpus e 1 L ^^ ^j^^ absence of direct evidence, that, in cri-
minal cases, the " Corpus delicti," at any rate, should be
proved by direct evidence, not simply be 'inferred from
the surrounding circumstances. If a man is to be con-
victed of murder on circumstantial evidence, the fact
of the deceased having come to a violent end should, accord-
ing to this doctrine, be proved by direct evidence, as by the
evidence of some one who inspected the corpse ; if a man
is to be convicted of theft on the strengui of circum-
stantial evidence, it should first be proved by direct
evidence that some one has been robbed. Great authorities
may be quoted in support of this doctrine; but its
unsoundness was demonstrated by Bentham, who pointed
out ' that any such rule would merely have the effect of
allowing murders to be committed with impunity in every
case in which the victim's body could be successfully made
away with ; and so with every other crime. The fact is that
it is in vain to invest any one of the facts of the case with an
artificial value, and insist upon it as essential in every case
to a conviction. It is easy to imagine cases in which the
corpus delicti was not directly proved, and yet in which the
prisoner's guUt would be beyond all reasonable doubt, and in
which it would accordingly imply the grossest timidity to
shrink from convicting. On the other hand, even suppos-
ing the corpus delicti to be directly proved, its proof disposes
of only one of various hypotheses, on any of which the
prisoner's innocence might be inferred, all of which must be
shown to be untrue before a conviction can be justified : the
fact that the deceased came to a violent end is, indeed,
proved ; but a great many other facts must be proved before
Digitized by VjOOQIC
INTRODUCTION, 13
any one can be convicted of having murdered him ; and
there seems no reason why the one fact should necessarily be
proved in a different way from the others.
29. But then the question arises, to which of the sur-
Which of the ^ounding facts is a Judge to look, and
surrounding facts where is he to stop ? over how large an
are to be consi- area ofsuiTOunding circumstances is his mind
dered relevant ? ^ ^^^^^j ^ coming to a beUef as to the fact
in issue ? Which of these surrounding circumstances is he to
take into account, which is he to ignore ? Some of them will
affect the probability of the fact in issue in a high degree :
some in a lower, but still appreciable degi^ee, some in so
low a degree as not to be worth notice.
•^o*
Suppose for instance that A is prosecuted for the murder
of B, and the surrounding circumstances to
lUustration. ^^ ^^^^^^ ^^^ ^ ^^ ^^^^ ^^ ^ ^^^ jy standing
over B*s corpse with a bloody knife in his hand, the blade of
which exactly fits the wound in B's body ; (2) he was known
to have a violent grudge against B and to have threatened to
kill him, (3) he was so circumstanced that B's death was
of material advantage to him, (4) he was seen by one man
going towards the scene of the murder shortly before its
occurrence, and by another coming away shortly afterwards,
(5) he left the village the evening of the murder having
previously burnt his clothes, (6) he was of a hostile clan to
fe ; (7) he was a man of notorious evil life, (8) he had twice
before been convicted for crimes of violence, (9) he was
surly, passionate and violent disposition and unpopular 'in
his village, (10) there was a rumour that he had done it,
(11) the general feeling in the vUlage was that he was the
guilty man, (12) somebody told somebody else that he be-
lieved A to be the murderer ; (13) A's father and grandfather
had both been convicted of homicide. Here are facts rang-
ing in every degree of importance in their beaiing on the
facts in issue, from the very highest to the very lowest.
Some of them, if true, produce a feeling almost of certainty ;
some, coupled with others, raise a strong presumption;
some again, though not by themselves of great importance,
do, when coupled with others, materially affect the proba-
bility of the case ; some on the other hand, as, e. g., 9,10, 11,
12 and 13, suggest a probability so faint that it is more
likely to lead one wrong than right, and ought therefore to
be put aside altogether. Where is the line to be drawn ?
For a line must be drawn somewhere. " The Laws of
Digitized by VjOOQIC
14 INTRODUCTION.
Evidence," said Lord Cranworth, " are founded on a com-
pound consideration of what, abstractedly considered, is
calculated to throw light on the subject in dispute, and
what is practicable." On the one hand we want to discover
the truth ; on the other hand, since human life is short,
and human powers are limited, we can devote only a limited
amount of time and labor to its discovery. It is necessary,
therefore, to . prescribe a definite area, beyond which our
investigations shall not extend. The facts which fall
within that area are styled " relevant," and it out of these
and these alone that the Judge's belief about the matter
must be formed. These alone can be proved. What then
are the rules for testing whether a fact is relevant or not ?
The answer to this question is given in Part II of the Act,
Sections 5 — 55.
30. But, first, what is the meaning of a " Fact." " Fact" is
defined as meaning (1) " any thing, state of
wo^d^M^di!" ^^ *^^»g^' ^^ relation of thmgs, capable of being
perceived by the senses, (2) any mental con-
dition of which any person is conscious." " Fact" wiU there-
fore include acts and events that can be perceived by the
sense of the sight, statements which can be perceived by
the sense of hearing, opinions, feelings and belief of which
the mind is conscious : and we shall see presently that state-
ments, opinions, feelings and beliefs are often relevant facts
of the very highest importance.
Arrangement of 31. In forming an opinion about a fact,
relevant facts. one would naturally consider
Is^. — ^What has happened, or been done in connec-
tion with it,
2nd, — ^What has been said about it,
Srd. — What has been decreed in Courts of Justice
about it,
ith, — What has been or is thought about it, and
5th. — ^What is the character and reputation of
parties concerned.
Under these five headings, accordingly, all relevant
facts have been arranged; under some one of them
every fact, which claims to be relevant, must be shown
to fail : many relevant facts moreover will fall under
more than one of them, as the headings are all inclusive
and not exclusive of one another.
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INTRODUCTION. 15
32. A fact, then, is relevant, if it is so connected with a
Acts and events ^^^ ^^ .^^sue as to form part of the same
when relevant transaction, whether it happened at the
facts. same or at a different time or place. Sec. 6 ;
if it is the occasion, cause or effect, immediate or other-
wise, of a fact in issue or relevant fact; or constitutes
the state of things under which such a fact happened, or
affords an opportunity for the occurrence of a fact in issue
or relevant fact, Sea 7 ; so also facts showing motive or pre-
paration for a fact in issue or relevant fact ; previous or subse-
quent conduct of the parties; statements of the parties
which accompany and explain conduct; statements, made to
or in the presence of the parties, which affect their conduct.
Sec. 8 : so also are facts necessary to explain or introduce a
fact in issue or relevant fact, or which rebut an inference
suggested by such a fact, or which establish the identity of
anything or person, whose identity is relevant, or fix the
time or place at which any fact, in issue or relevant,
happened, or which show the relation of parties by whom
any such fact was transacted, Sec. 9 ; all acts and state-
ments of conspirators in connection with, or explanation of
the conspiracy. Sec. 10; facts that are inconsistent with a
relevant fact or fact in issue, or which render any such fact
highly probable or improbable. Sec. 11 ; or which enable
the Court to determine the amount of damages when
damages are claimed. Sec. 12 : so too, when the inquiry is as
to a right or custom, any transaction by which, and any
particular instance in which such right or custom was created,
claimed, modified, recognized, asserted or denied, exercised,
disputed or depaiiied from, is a relevant fact, Sec. 13 ; so
also are facts diowing the existence of a state of mind or
body when such state of body or mind is relevant, Sec. 14.
Again, when the question is whether an act was accidental
or intentional, the fact that it formed part of a series of
similar occurtences, is relevant. Sec. 15 ; and so is the course
of business according to which the act, as to which the in-
quiry is, would have been done, ^c. 16 ; all these are
relevant facts.
33. The next class of relevant facts are certain state-
Statements nients ; (Sections 17 — 39.) As a general rule
when relevant the mere fact that some one has previously
^^^' said something about the matter in dispute
is, of course, wholly irrelevant ; but there are certain condi-
tions under which previous statements have a most impor-
tant bearing on the probabilities of the case, and are ahnost
Digitized by VjOOQIC
16 INTRODUCTION.
the best evidehce that a Court can have. Everything de-
pends on the person by whom and the circumstances under
which they are made.
34. The first kind of statements to be considered are
. , . . Admissions. An admission is defined to be
any statement, which suggests an mference
as to a fact in issue or relevant fact, made by
Bywhoma ^^^ ^ V^^J ^ ^^® proceeding,
statement must (&) anagenttosuch party, di3y authorized,
be made in order (c) a person, who has a proprietory or
to be an admis- pecuniary interest in the subject-
matter of the suit, and who makes
the statement in the character of a person so interested,
^ (d) a person from whom the parties to the suit have
derived their interest,
(e) a person, whose position it is necessary to prove in
a suit, when the statement would be relevant in a suit
brought by or against himself,
(/) a person, to whom a party in the suit has expressly
referred for information.
In order however, for the statement, to be an admission
it is further necessary, as to (a), in the case
When state- of persons suing or sued in a representative
mSlirorderto capacity, that the statement should have
be an admission, been made during the continuance of their
representative character, and in the cases
(c), (d), (e), that the statement should have been made during
the continuance of the interest or position as to which the
statement is made.
35. The peculiarity of to admission is that it i^
relevant as against the person who makes it
Admission is or his representative in interest, but not
][he Trson^w^ho relevant, except in certain specified ca^es, on
made it. his or his representative's behalf. The reason
of this is obvious. If A sues B for Rupees
50, the fact that B told some one else that he owed A the
money, is a weighty piece of evidence as against B ; he has
every incentive not to make such a statement, audit is
nearly certain that he would not have made it unless it
were true. On the other hand, suppose that A has said,
" B is no longer my debtor," that, for the same reason, is a
weighty piece of evidence against A, and, supposing its
authenticity to be established, its importance can hardly
be overrated in considering the question of A's claim : For
Digitized by VjOOQIC
INTRODUCTION. 17
who is so likely to know about the claim as himself, and
who so little likely to understate it ? But the fact that A
has told some one that B owes him the money, or that B
has denied the existence of the debt, is of no weight at all,
because each of course makes the best of his case, and each,
if such statements were admissible, would simply be manu-
facturing evidence in his own behalf. It is clear that the
fact that A asserted or B denied the debt, on any number
of occasions, does not in any appreciable degree affect the
question whether there was such a debt or no.
36. An admission, then, being relevant only against the
What is the person who makes it or his representative,
effect of an ad< what is its effect as against him ? It is not,
mission? merely as an admission, conclusive; the
person who made it may show that he was mistaken, or
was not telling the truth, or may diminish the importance
to be attached to it in any way he can ; he is not precluded
from contradicting it. Many admissions, however, become
** estoppels/' and then, as will be seen hereafter, (Sec. 115,)
the person who made them cannot deny them. So far,
however, as they are merely admissions, he may induce the
Court to disbelieve them if he can.
37. We now come to the exceptions to the rule that ad-
Certain admis- ^ssions are relevant only against the per-
sions may be pro- SOU who made them and his representatives,
ved by the person and npt in his or their favor. There are
who made them, certain cases in which a person's admissions
may be proved in his own behalf. In the first place there
are certain statements, for which provision is made in Section
thirty-two,* which are relevant, if the person, who made them,
is dead, or for other good reason cannot be produced. Now
any statement, whict is of such a nature as that, if the
person making it were dead or could not be produced, it
would become relevant under Section 32, may be proved,
as an admission by or in behalf of the person who made
it. For instance a Captain is tried for casting his ship
away. He produces his log-book, with entries by him-
self, showing that the ship was kept in her due course. It
would appear at first sight that he could not make use of
the entries, in his own l^half, as being admissions ; but they
are admissible, under the present exception as being entries
made in the regular course of business, which are admis-
sible whenever the person who made them cannot be
produced.
* See post para. 42
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18 INTRODUCTION.
38. Again a man may, prove his own admissions on Mj*
own behalf, when the admission relates to a
missi^ras* to re- relevant state of body or mind, was mad©
levant state of at or about the time when such state of body
mindorbodymay or mind existed and was accompanied by
^ifXkffitr" conduct rendering its falsehood improbable.
A tradesman, for instance, wants to prove,
that, at a particular date, he believed a certain Banker, A,
to be solvent ; he may for this purpose prove that about
the time in question he said, *' A is the safest Banker in
the town " at the same time placing a large sum in A's
hands.
39. Again an admission may be proved by the person
who made it, when, under some other head of relevancy, it
can be shown to be relevant otherwise than as an admission :
a man, for instance, is accused of receiving stolen goods, know-
ing them to be stolen. He may prove his own refusal to sell
them below their real value, because that refusal would be
relevant under Section 8, as explaining conduct influenced
by a fact in issue. Had he known them to be stolen,
he would have been anxious to sell, though at a sacrifice,
his conduct, therefore, in not wishing to sell is relevant, and
so are his statements explaining that conduct. In like
manner a man might prove his own statements, if they
formed part of the same transaction with a relevant fact
under Section 6, or were the occasion of a relevant fact
under Section 7, or are necessary to explain it under Sec-
tion 9.
40. Under this heading provision is made for the con-
fessions of accused persons. No such con-
accused ^persons, fession is relevant if it appears to have been
obtained by means of any inducement, threat
or promise, having reference to the charge, proceeding from
a person in authority, and sufiicient to make the accused
person suppose that he would, by making it, better himself,
in a temporal way, with reference to the proceedings. The
provisions of the old Code of Criminal Procedure as to the
inadmissibility of confessions to the Police, and of any con-
fession made by a person in Police custody except in the
presence of a Magistrate, are reproduced without material
change. Confessions other than those expressly excluded
are not irrelevant merely because made under a promise
of secrecy, or in consequence of a deception, or during
drunkenness.
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INTRODUCTION. 19
41. Lastly, Judges are relieved from the attempt to per-
form an intellectual impossibility by a pro-
coSccuaeT ^ ^^ vision, that, when more persons than one are
tried for an offence, and one of them makes a
confession affecting himself and any other of the accused, the
confession may be taken into consideration against such
other person as well as against the person making it. Such
a statement is, of course, in the highest degree suspicious ; it
deserves the least possible reliance : but none the less it is
impossible for a Judge to ignore it, and he is now no longer
obUged to pretend to do so. The exclusion, in fact, was one
of those rules of evidence, borrowed from the English system,
which, though well adapted to Trials by Jury, are meaning-
less and out of place on occasions where the functions of
Judge and Jury are combined in a single official The Indian
Judge will, for the future, have simply to consider whether
the confession ought to have any weight with him, and, if
any weight, how much, in the opinion he forms about the
case. The exclusion of confessions of this kind from the
definition of " evidence" is intended, apparently, to remind
the Judge that he is dealing with thoroughly unsound
materials, and that, though he may take them into considera-
tion, he must not rely on them as the sole or even as the
chief basis of his belief.
42. Next follow certain statements, which, from their
Statement made mature, become relevant facts, when the per-
by a witness who SOU who made them is dead, or for other
cannot be produc- good reason cannot be produced, or cannot
be produced without a degree of expense and
trouble which the Court considers unreasonable. These are :
1. Statements by a person since deceased as to the
cause of his death ;
2. Statements made in the ordinary course of
business ;
3. Statements against a person's interest :
4. Statements as to the existence of any public
right or custom or matter of public interest,
made by a person likely to know of the
existence of such right, custom or matter,
and before any controversy about it had
arisen :
5. Statements as to relationship by a person
having special means of knowledge, made
before the question in dispute was raised :
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20 INTRODUCTION.
6. Statements as to relationship of deceased per-
sons contained in Wills, Deeds, Pedigrees, on
tombstones, family portraits, &c, and mad^
before the question in dispute was raised :
7. Statements in Deeds, Wills or other documents
relating to any transaction, in which some
right or custom in dispute was created,
claimed, modified, recognized, asserted or
denied, or which was inconsistent with the
existence of such right or custom :
8. Statements by a number of persons of their
feelings or impressions, when such feelings or
impressions are relevant to the matter in
question.
43. In the next place statements made by a witness in a
statements in former Judicial proceeding are relevant facts
former Judicial when the witness is dead or cannot, without
proceeding. unreasonable trouble, be produced, and if
(1) the proceeding was between the same parties
or their representatives,
(2) the adverse party had the right and oppor-
tunity to cross-examine,
(3) the questions in both proceedings were sub-
stantially the same.
44. There is another class of statements, which are rele-
Statcments ^ant on account of the circumstances under
madeunderspeci- which they are made, whether the person
al circumstances, ^^o made them is producible or not. Such,
for instance, are entries in books of account, regularly kept
in the course of business, subject however, to the condition
that they shall not be sufficient evidence to charge any one
with liability, without some independent evidence ; entries
in public records or registers by a public servant or other
person in discharge of his duty ; statements in published
maps, or in maps made under the authority of Government ;
statements of facts of a public nature made in the recital of
an Act of Parliament, or of any of the Indian Legislatures,
or in a Notification in the Gazette of any Indian Government,
the London Gazette or the Government Gazette of any Eng-
lish Colony ; statements of the law of any country contained
in a book published under the authority of the Government
of that country, and published rulings of the Courts.
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INTRODUCTION. 21
45. The next class of relevant facts are Judgments of the
Courts of Law. These are often relevant
rdevfJ^U^t^^^ facts ofthe highest importance. In the first
place in Civil cases, a suit will be barr^
altogether if the same cause of action has been already dis-
posed of by a competent Court, between the same parties or
J. . ^ those through whom they claim ; the matter
3u ca a. j^^ become " res judicata," and so long as
the first judgment remains unreversed, the Law will not
allow fresh proceedings to be taken by those whom the
Judgment binds. Whenever, accordingly, under the provi-
sions of Section 2 of the Code of Civfl Procedure, a second
suit is barred by reason of the cause of action having been
previously adjudicated, the judgment, order, or decree, in
which that former adjudication was expressed, is relevant.*
46. In the same way an accused person may bar criminal
. proceedings against himself by showing that
tion°™acqStja. "® ^^ ^^^ previously acquitted or convicted
by a competent Court on the same facts
as those in respect of which he is being prosecuted. The
Judgment of the Court by which he was acquitted or con-
victed, would, in such case, be relevant.
47. We have seen that civil judgments do not ordinarily
Certam ludc- P^^^^^® ^^Y ^^^ ^^^ ^^^ parties to the suit
mentsareconclu- or their representatives from contesting the
sive against all matter upon which they are pronounced,
the world. There are, however, certain very important
exceptions to this rule. There are some judgments, the
nature of which is not to define a man's rights against parti-
* Exception has been taken to this part of the Act as incomplete, in not
sufficiently disposing of the qnestion as to the effect to be atti'ibuted to
Judgments of the Courts. It is obvious, however, that, as the subject has
been hitherto governed by Section 2 of the Code of Civil Procedure and
the rulings of the Courts thereon, inconvenience would have been occa-
sioned by Legislative interference with the effects of that section, when
the section itself was not under discussion. That section, no doubt,
requires, and in any future Edition of the Code wiU undergo amendment,
so as to render it more explicit, and to provide for the enecit of foreign
judgments and other collateral topics. Meanwhile the student may con«
tent himself with the reflection tnat one of the most troublesome and
unedifying Chapters ef EngliiEdi Law has been reduced by these sections to
abstflute smiplicity. The mist of inaccurate or unmeaning language which
hung about the judgment in rem has been swept away ; the ''estoppel by
record" has shared a like fate ; and the area over wluch judgments can
operate, the persons whom they can affect and their effect upon rights' of
litigation for the future, are defined with the utmost rigidity and precision.
When Section 2 of the Civil Procedure Code has received the necessary
amendment, complete and satisfactory provision will, it is believed, be
found to have been made for every branch of thia important subject.
Digitized by VjOOQIC
22 INTRODUCTION.
cular individuals, but to declare his status generally, as
against all the world. As to what these judgments are, and
as to the grounds on which they operate not only as against
the parties to the suit but as against all the world, the
rulings of the English Courts and the various Text-books
have, unfortunately, not been wholly free from indistinct-
ness. While all parties agreed that judmients of this nature
were to be called 'Judgments in rem,' the
jud^tTi^r^' origin and real signification of that expres-
sion has been very partially understood, and
it i^ difficult to reconcile the theories which have been
enunciated by different English Tribunals on the subject.
The subject was cleared of much of its difficulty by a learned
Judgment of Mr. Justice Holloway in the Madras High
Court, in which he explained the historical sources of the
' Judgment in rem,' and showed that its peculiar efficacy
was originally derived, not from the nature of the judgment
itself, as declaring status, but from the character of the
action in which, and of the tribunal by whidi it was pro-
nounced ; and it is with reference to these considerations
that the law, which will for the future regulate the subject
in this country, has been framed.
48. Section 41 of the Act provides that a final Judgment
. . . of a Court exercising Probate, Matrimonial,
the Art!T to Admiralty or Insolvency Jurisdiction, which
Judgmentswhich confers upon or takes away from any person
a r e conclusive any legal character, or which declares any
woTd.* P^^^^ ^ be entitled to any such character,
or to be entitled to any specific thing, not
against any specified person but absolutely, is conclusive
proof that any legal character, which it confers, accrued at
the time when the decree came into operation ; that any
legal character, to which it declares any person to be entitled,
accrued at the time mentioned in the decree ; that anything
to which it declares a person to be entitled was that person's
property at the time at which the decree declares it to
be his.
49. With the exception of the cases just noted, there
will be, for the future, no judgments con-
whrcl? "though elusive in Indian Courts against persons
not conclusive other than the parties to the proceedings or
against aU the their representatives. There are, however,
v^t w e'wdSi^ s?«^^ judgments which, though not conclu-
of the facta stated sive proof of what they state, and not bind-
in them. ing upon anybody but the parties to them.
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INTRODUCTION. 23
may yet be considered by the Court by way of evidence as
to the focts with which they are concerned. Such are
judgments relating to matters of a public nature ; as, for
instance, in a suit, in which the existence of a public right of
way is disputed, a judgment between other parties, in which
the existence of the same right of way is aflBmied or
negatived, may be put in as evidence of the existence or non-
existence of the right; though the party against whom it is
employed will be at libertv to counteract it, if he can, as he
would any other piece 6f nostile evidence.
50. Lastly, the existence of a judgment will sometimes
be a relevant fact under some of the other
Judgments provisions of the Act as to relevancy. The
soml^'othe^ro! fact that A has obtained a decree of eject-
vidonofthe Act. ment against B may be the motive for B's
murdering A ; or it may be necessary, for,
the purpose of proving A's position, to show that he suffered
judgment to go by default against him at a particular time ;
or the fact of A's having prosecuted B for slander may ex-
plain the relations of the parties, and their state of mind on
a subsequent occasion. In any such case the judgment will
be a relevant fact.
61. The next class of relevant facts are " opinions."
There are some cases in which, with a view
rele?SctI ^^ ascertaining the truth about a thing, it
becomes important to know what people
think about it. This is obviously a somewhat unsubstantial
sort of proof, and it will be seen that it is only in very
special cases, and under very strict conditions that ' opinions'
are admissible.
52. In the first place it is often necessary for the Court
Opinions as to ^ ^^® course of an inquiry to be informed
mattersof foreign on some scientific matter, which is material
la^ science, art to the decision, and this information can be
or handwnting. supplied only by a man of science, specially
versed in the subject. What are the symptoms of particular
sorts of poison; could such symptoms be produced by any
other cause ; what would be the results of a certain blow in a
certain part of the body ; do particular symptoms commonly
show unsoundness of mind, and is the imsoundness of mind
so shown of such a nature as to render a person incapable of
knowing the character of his acts ; could a ship, seaworthy at
one time, be in a specified condition of unseaworthiness at
another 3 these and a hundred kindred questions are of daily
Digitized by VjOOQIC
24 INTRODUCTION.
recurrence in the Courts, and can be answered only by the
' opinions' of those who possess special information about
the subject
53. Such specially skilled persons are called Experts, and
jjj^^^^ their opinions on any point of foreign law,
^^ science, art, or identity of handwriting are
relevant, whenever the Court has to come to a decision with
reference to any of these matters ; moreover, when an ex-
pert's opinion is relevant, any fisict, which supports or is in-
consistent with that opinion, becomes relevant.
^v . . . • 54. In the next place there are some
Upimons of per- . . v • i 1 1 r x • i
801^ poBsesfflM opmions, which, though not given by ex-
special ^^osol perts, are yet relevant as being the opinions
information. ^f persons possessing special means of infor-
. mation. As to the identity of handwriting,
an wn ing. ^^^ opinion of any person who is acquainted
with the handwriting of the person, by whom the document
is supposed to be written or signed, is relevant : and a pei-soa
is said to be acquainted with the handwriting of another,
when he has (1) seen him write, or (2) received letters pur-
porting to be signed by him in reply to letters addressed to
him, or (3) been in the habit, in the ordinary course of
business, of seeing documents purporting to be signed by
him.
55. Again when the question is as to the existence of
any general custom or right, the opinions of
orrigS, ftcT^™ persons, who would be likely to know of its
existence, are relevant; and so, when the
question is as to the usages and tenets of any body of men
or fitmily, the constitution and government of any religious
or charitable foundation, the kneaning of words or terms in
particular places or by particular classes, th« opinions of
persons, having special means of knowledge thereon are
relevant. On matters of relationship, moreover, the opinion,
expressed in conduct, as to such relationship, by persons
having special means of knowledge on the subject, whether
relatives or not, is relevant, except in certain specified cases,
for the purpose of proving such relationship. Thus, as a
general rule, the fact of two people being man and wife, or of
one person being the legitimate child of another may be
inferred with tolerable safety, from the behaviour towards
them of other members of the fitmily. There are, howevet,
certain important cases, such as proceedings in Divorce, in
which the fact of marriage must be substantiated in a more
formal manner.
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INTRODUCTION. 25
56. We now come to the last class of relevant facts, the
cases, namely in which Character is relevant,
a rel"anVf^t.^^ ^^ ^^^ cases a person's character cannot be
proved for the purpose of showing that any
conduct attributed to him is probable or improbable. If a
man is sued for breaking his promise, or for wrongful detainer
of another man's goods, evidence cannot be given to show
that he was likely, from his disposition and reputation, to
have done that which is alleged against him. It is obvious
that inquiries into the ordinary transactions of life would
be indefinitely prolonged, if, in deciding whether a man had
or had not done something, the Court had always to inquire
whether he was the sort of man to do it. We do not know
enough about each others motives and dispositions, and wo
cannot analyze them with sufficient delicacy or minutenes.s,
to allow us safely to draw inferences from them as to the way
in which people will manage their affairs : in civil inquiries,
accordingly, all evidence of this nature is rejected, though
a Judge must, of course, draw his own inferences from the
relevant facts proved as to the character of the parties con-
cerned, and such inferences may materially affect the pro-
bability of any conduct imputed to them. In criminal
inquiries the case is different. There is a broad line between
crime and innocence, and when the question is whether a
man has committed an offence or not, his character becomes
a material consideration. Sometimes it is almost conclu-
sive : suppose, for instance, that a murder is committed
under such circumstances that one of two persons must be
the murderer : one of them is a habitual offender, of notori-
ous evil life, of ferocious disposition, of lawless habits : the
other is a person of refinement, delicacy and saintliness.
Who can doubt that in such a case the character of the
persons concerned is a main element in the consideration of
innocence or guilt ? The only question is as to how much
evidence of character shall be let in. In the first place, it
must be always right that an accused person should have
the benefit of a previous good character, and of any favor-
able inferences that are to be drawn from it. Evidence of
good character is accordingly always admissible.
As to previous bad character, the anxiety of the Legisla-
ture that persons on their trial should be treated with all
possible fairness and even indulgence, has excluded evidence
of previous bad character except in two cases. If a man
has been previously convicted of an offence, that is a tangible
4
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26 INTRODUCTION.
unmistakeable piece of evidence about him, and the Court
is to weigh this in determining on the probabilities as to
his innocence or guilt. A previous conviction, accordingly,
is always a relevant fact, and may be proved as a subston-
tive part of the case for the prosecution, not merely, as
heretofore, introduced, at a stage subsequent to conviction
for the purpose of entailing a heavier punishment. In the
next place, if an accused person brings forward evidence c^
his previous good character, he has challenged inquiry, and
it is obviously right that evidence to contradict his luleged
good character, should be admissible : in any such case, there-
lore, the fact of the accused being of bad character would
become relevant.
57. Lastly, character is relevant in Civil cases, wherever
Character rele- i^ affects the amount of damages to be
vant when it recovered, as in actions for libel, seduction,
aflfects damages, ^j. j^ proceedings in the Divorce Court. It
is obvious that in inquu'es of this nature, the amount of
injury inflicted, and, consequently, the compensation to be
given, must depend to a large extent, on the character of
the person concerned; and the Court must, accordingly,
take notice of this in assessing the damages, to which such
person is entitled.
58. This completes the list of relevant facts. There are
certain other facts, provided for in Sections
ad^^d flrtL' 146 148, 155, 156 and 157. Avhich may.
purpose of corro- under Certain circumstances, be proved for
berating or dis- the purpose of discrediting a witness either
nes^^! ** ^ ^ ^^ ^y snowing previous inconsistent statements
or in some other manner proving him to be
untrustworthy ; or for corroborati% a witness by showing
corroborative circumstances or by proof of previous state-
ments consistent with his present evidence. It will be,
however, more convenient to consider them in the natural
order, when we come to the mode in which witnesses are to
be examined.
59. This concludes the first part of the Act, as to the
Part II. How material of belief. We now proceed to in-
are relevant facts quire as to the mode in which this material
to be proved. ig ^o be brought to the Judge's mind,— in
other words how facts, which are relevant under the preced-
ing sections, are to be proved. This is provided for in Part II
oftheAct, (Sec, 56— 100).
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INTRODUCTION. 27
60. In the first place there are certain facts which need
Some facts ^^^ ^ proved at all. These are generally
which need not facts of SO public and notorious a character
be proved. ^1^3^^ everybody is supposed to know them ;
such as the Law in force in British India, Acts of Parlia-
ment, the course of proceeding of Parliament and of the
T J- . 1 ^' Indian Legislatures, the accession and Sim-
Jttdicial notice. i F xi. o • • 2c • 1
manual of the sovereign, various official
seals, the appointment of various officers, and other facts of
a like nature. As to these no proof need be offered. The
Court takes judicial notice of them, and in doing so, may
resort for aid to appropriate books of reference. A party,
however, calling upon the Court to take judicial notice of
any fact must be ready to supply it with any necessary
book for the purpose of reference, (Sec. 57).
61. In the next place no proof need be given of facts
Facts which which the parties or their agents agree to
the narties agree admit at the hearing, or which, before the
to admit. hearing, they agree to admit by writing
under their hands, or which, by any rule of pleading
Or are deemed ^^ ^^^^^ ^^ *he time, they are deemed
to have admitted to have admitted by their pleadings, (Sec.
bytheir pleadings 53^
62. This last provision is of less importance in India,
than it would be in England, where pleading
Strict Rules of has been reduced to a rigid, and, until recent
lio^t^fnedm *™®S' * ^^S^^y technical system. Accord-
Procedure, ing to English law, wherever a material
averment, properly put forward by one
party is passed over by the adverse party without denial, it
is taken to be admitted : and, accordingly, if the plaint states
a fact, and the defendant's plea does not contradict it, but
goes upon some other ground of defence, (as for instance, that
the suit is barred by the Statute of Limitations) this amounts
to an admission of the fact by the defendant. No such rule,
it need hardly be said, is, in any but a very small degree,
applicable to proceedings in an Indian Court, where the
Judge, in most instances, frames the issues, as he picks the
merits of the story out from the statements of the conflict-
ing parties, and where those parties are generally unlettered
peasants without professional assistance. There are, how-
ever, no doubt, cases in which a Judge would consider that
a man had virtually made an admission by his pleading ; as
for instance, if a tenant, being sued by his landlord for a
Digitized by VjOOQIC
28 INTRODUCTION.
breach of the conditions of his lease, pleaded leave and
license in the particular instance, the landlord might be con-
sidered to be relieved from the necessity of proving the
tenancy. So a defendant who, when sued for a bond-debt,
pleaded payment, might be taken to have admitted the
existence of the bond. No fixed rules, however, on the sub-
ject have as yet found a place in the procedure of the Indian
Courts.
63. We then come to the cardinal rules that (1) All facts,
except the contents of documents, may be
«,S«^^f^^f*^® woved by oral evidence ; and that (2) Oral
mode 01 proof. *,, *' .. ' , , -l T .
evidence m/usty m every %nstance, he direct,
that is to say, if the fact to be proved is one that could be
seen, the evidence must be that of a witness who saw it ; if
the fact is one that could be heard, the evidence must be
that of a witness who heard it ; if it be one which is percepti-
ble by any other sense, the evidence must be that of a wit-
ness who perceived it by that sense ; if the fact to be estab-
lished is the existence of an opinion in a persons' mind, the
evidence must, except in certain cases in itvhich special
provision is made for the proof of Expert's opinions, be that
of the person who holds that opinion.
Illustration ^** ^^^ ^^ suppose, for instance, that A
is charged with the murder of B, and that
the facts alleged in support of the charge and shown to be
Kelevant Facts, relevant under Part I, are as follows ;
1st Witness. — A came running from the scene of the mur-
der at 12 o'clock.
2nd Do. Some one screamed out at the same time
and place, " A, you are murdering me."
3rd Do. A left his house at llj, vowing that he
would be revenged on B for pressing so
hard for his debt.
4th Do. There was blood at the scene of the murder,
and on A's hands and clothes.
5th Do. There were tracks of footsteps from the
scene of the murder to A's house, which
corresponded with A's shoes.
6th Do. The wound of which B died, was of a cha-
racter to cause death, and could not have
been inflicted by himself.
7th Do. The deceased said " The sword blow inflicted
by A has killed me."
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INTRODUCTION. 29
8th Witness. — The statement of the prisoner before the
Magistrate was '' I lolled B, because I
was desperate."
9th Do. The prisoner told me that he was deeply-
indebted to B.
65. Now these various circumstances, statements, and
How the above opinions, would all be relevant facts under
facts must be Part I, and the rule now imder considemtion
proved. provides that in each instance they must be
proved by direct evidence, that is, the fact that A came run-
ning from the scene of the murder, as alleged, must be
proved by a witness who tells the Court that he himself saw
A so running ; the fact of the screams heard by 2nd witness
must be proved by the 2nd witness telling the Court that he
did hear such screams ; the fact of A having vowed, shortly
before the murder, to be revenged on A must be proved by the
third witness, who heard the vow : so, the blood oy the person
who saw it ; the footsteps, by the person who tracked and
compared them ; the doctor's opinion as to the wound by
the doctor testifying that that, it is his opinion ; the dying
man's statement, and the prisoner's confession by a person
who heard them. They must not be proved by the evidence
of persons to whom any of the witnesses abovementioned may
have told what they heard, or saw, or thought
Specimen of in- 66. For instance, all the following evi-
direct Evidence, dence would be inadmissible.
10th Witness. — My child 6ame in and said, " I have seen
A running in such a direction."
11th Do. The Police told me that screams had been
heard at such a time.
12th. Do. Father said, " I am sure there will be
murder, for A has just left the house,
vowing to be revenged on B."
13th Do. The Police compared the footsteps and
said, " There ! they exactly fit."
14th Do. The Doctor said that the man could never
cut himself like that.
15th Do. Everybody said that there was no more
doubt, for the accused man had identi-
fied the prisoner.
16th Do. B's wife told me the day before, that A
was heavily indebted to him.
Digitized by VjOOQIC
30 INTRODUCTION.
All the evidence of witnesses 10 to 16, would be inadmissible,
not because the facts to which it refers are irrelevant, but be-
cause it is not direct, that is, not given by the persons who
with their own senses perceived the facts described, or in
their own minds formed the opinions expressed. The only-
use that could be made of it would be for the purpose of
corroborating some other witness by proving a former con-
sistent statement made by him at the time : or of discredit-
ing him by proving a former inconsistent statement : except
for these purposes it would be inadmissible.
67. An exception to the rule that the existence of an
opinion must be proved by the person who
Opinions*^ holds that Opinion, is made in favor of
Sd^bTw Experts, whose opinions may be proved by
tises. their published treatises, if the expert is dead
or cannot be found, or if the Court considers
that to call him as a witness would involve unreasonable
delay or expense. Special provisions also are made in the
Code of Criminal Procedure for obviating the necessity of
the personal attendance of Civil Burgeons and Chemical
Examiners to Government, but these provisions in no way
infringe the principle in question. The evidence of these
officers must be direct, as in every other case; but, on
grounds of public convenience, they are allowed to give it
in a different way from other people.
* 68. So much for the mode of proving everything except
documents : Chapter V, deals with the proof
mentT ^^ *^® Contents of documents, and thus
brings us to the distinction between pri-
mary and secondary evidence.
Primary Evidence of the contents of a document is the
document itself produced for the inspection
deiwc^*^ ^^ ^^ Court. Where a document is execut-
ed in several parts, each part is primary
evidence ; and, where a document is executed in counterpart,
each part is primary evidence as against the party executing
it : where a number of documents are made by a uniform
process, such as printing or photography, each one is primary
evidence of the contents of all the rest.
evkience.^ ^^' Secondary evidence includes
(1.) Certified copies given under the provisions of the
Apt;
Digitized by VjOOQIC
INTRODUCTION. 31
(2.) Copies made from the original by mechanical pro-
cesses which in themselves insure the accuracy of the copy,
and copies compared with such copies ;
(3.) Copies made from or compared with the original ;
(4.) Counterparts of documents, as against the parties
who did not execute them ;
(6.) An oral account of the contents of a document given
by some^person who has himself seen it.
Documentsmurt 70. The rule on this subject is that
be proved by pri- Documents must he proved by primary evi-
mary evidence. dence, except
(a.) When a document is in the power of the
■g ^ person against whom it is to be proved, or
X ep ons. ^^ ^ person legally bound to produce it, or
of a person out of reach of, or not liable to
the process of the Court, and such person
does not (after notice to produce in cases in
which such notice is necessaiy) produce it ;
In this case any secondary evidence of its contents is
admissible.
(6.) When the existence or contents of the origi-
nal are proved to have been admitted in
writing by the person against whom it is
to be proved or his representative ;
Here the written admission is admissible.
(c.) When the original has been destroyed or lost,
or when the party oflfering evidence of its
contents cannot for any other reason, not
arising from his own neglect or default,
produce it in reasonable time ;
Here any secondary evidence of the contents of the docu-
ment is admissible.
(d) When the original is of such a nature as not
to be easily moveable ;
Here again any secondary evidence may be given.
(e,) When the original is a Public Document,
viz.:
I. A document forming the Act or record of
the Act of
Digitized by VjOOQIC
82 INTRODUCTION.
_ ... , 1. The Sovereign authority
^Public docu. 2. Official bodies and tribunals.
3. Public Officers, Legislative, Judicial and
executive, whether in British India, or
other portions of Her Majesty's dominions,
or a foreign country,
or n. A public record kept in British India of pri-
vate documents ;
In this case the contents of the original may be proved by
a certified copy.
(/.) When the document is one which may by
this Act or any other law in force in British
India, be proved by a certified copy ;
Here a certified copy is admissible.
{g.) When the original consists of numerous ac-
coimts or other documents which cannot
conveniently be produced, and the fact to
be proved is the general result of the whole
collection.
Here the result may be proved by any person, skilled in
the examination of such documents, who has examined
them.
71. The notice to produce referred to in (a) is not,
invariably necessary. When the document.
Notice to pro- the contents of which are to be proved, is
necls^.'^'^''^^ itself a notice ; when from the nature of the
case, the adverse party must know that
he will be required to produce it ; when the adverse party
has obtained possession of the original by fraud or force,
or has the original in Court, or has admitted its loss, and when
the person in possession of the document is out of reach of or
not subject to the process of the Court, no notice to produce
is necessary; and the Court may, if it thinks fit in any
other case, allow secondary evidence of a document to be
given, without the previous notice to produce it.
72. Next follow provisions (Sec. 67 — 73) as to the proof
of hand- writing and signatures, where a
When hand- document is alleged to have been written
wnting and at- ^j, signed by a particular person, and as to
testation must be ? i» . j . f • -i * -% . •
proved. proof of attestation when a document is
required by law to be attested. As to the
latter, the admission of a party to such a document of its
Digitized by VJiOOQlC
INTRODTJCnON. 33
execution by himself is sufficient proof as against him;
in other cases one attesting witness must be caued to prove
execution, or if there be no attesting witness alive, or subject
to the process of the Court or capable of giving evidence,
or if the document purports to have been executed in the
United Kingdom, it will suffice to prove that the attestation
of one attesting witness is in his hand- writing, and that the
signature of the person executing the document is in his
hand- writing. If the attesting witness denies or does not
recollect execution, it may be proved by other evidence.
In order to prove that a signature, hand-writing or seal, is
that of a particular person it may be compared with any
signature, hand- writing or seal, proved to the satisfaction
of the Court to have been written or made by that person ;
and the Court may direct any person in Court to write
any words or figures for the purpose of comparison. The
opinions of Experts and of persons acquainted with the
hand- writing are, under Part I, relevant for the purpose of
identifying it : in order to prove hand- writing, therefore,
some such person should be called.
73. We have seen that public documents may be
proved by a certified copy. Provision
How certified ig made in Sec. 76 for securing these
S*!**" ^"'" certified copies by the enactment that
every public officer having custody of
a public document, which a person has a right to inspect,
shall give that person, on demand and on payment of the
legal fees, a copy signed, stated and certified to be correct.
74. Beside these certified copies, there are special ways
Special way» of of proving certain public documents which,
proving certain are pointed out in Sec. 78. Acts, orders or
public docu- notifications of the Government of India or
°^®^*®* any Local Government in any Executive
Department may be proved by the records of the depart-
ment, certified by its Head, or by any document purporting
to be printed by order of Government : the proceedings of the
Legislatures by their Journals, published Acts, or abstracts,
or copies purporting to be printed by order of Government :
Proclamations, orders or Reorulations issued by Her Majesty,
the Privy Council or any Department of Government, by
copies or extracts contained in the London Gazette or pur-
porting to be printed by the Queen's Printer : the Acts of the
Executive, or proceedings of the Legislature of a foreign
country, by Journals published by their authority or com-
5
Digitized by VjOOQIC
S4 INTBODUCTION.
monly received in that country as such, or by a copy certified
under the seal of the country or Sovereign, or by a recognition
thereof in an Act of the Governor-General in Council : pro-
ceedings of a Municipal body in British India, by a copy of
such proceedings certified by the legal keeper thereof, or by
a printed book purporting to be published by the authority
of such body : public documents of any other class in a
foreign country, by the original or by a copy certified by the
legal keeper tibereof, with a certificate, under the seal of a
Notary Public or British Consul or Diplomatic Agents to
the effect that the copy is duly certified by its legal keeper.
75. One important branch of the proof of documents
consists of certain presumptions, which the
todwumen^** law authorizes in respect of them. It be-
comes necessary, accordingly, at this point,
to say something of Presumptions generally, though it is
only with such presumptions as afiect documents that we
have at present to deal The word ' Presumption' has been
used in the English Text-books with a very wide signifi-
Naturalandar- cation ; on the one hand ' presumptions of
tificial presump- fact' or ' natural presumptions' are described
**^'"'* as including all those natural inferences
which our acquaintance with the physical conditions of the
world, the order of things and the constitution of human
nature causes us to draw from any given fact : on the other
hand * presumptions of law' or * artificial' presumptions are
defined as meaning certain inferences, which the law directs
to be drawn from certain facts, irrespective of the natural
inference which those facts suggest: and these, again, are
Rebuttable and divided into two classes, " rebuttable," when
eonolnsire Pre- evidence may be given for the purpose of
TOinptioiw- contradicting the inference, and " irrebut-
table" or " conclusive" when no such evidence can be given.
76. These technical expressions have not been preserved
Provmons of ^^ ^^^ present Act, but the subject has been
the Act as to pre- provided for in the following manner. There
Buxnptions. 3^^^^ ^ ^}^q 1^^ ^qw stands, three classes of
inferences which the law directs or empowers a Judge to
draw from eertain facta in supersession of any other mode
of proi^. In tlio first place, the law sometimes directs an
inference to be drawn which is indisputable. In this case,
on proof of one fact, the Court is directed to regard some
other &ct as proved, and not to admit proof for the purpose
Digitized by VjOOQIC
INTRODUCTION. S$
of contradicting it ; in this case the fact, from which the
When one thing inference is directed to be drawn, is said to
IB " conclusive be ' conclusive proof of the fact inferred,
proof of another, (gee. 3.) For instance the notification of a
^cession of Territory in the Gazette of India is " conclusive
«j^ - proof that a valid cession, as notified, has
^ ^*' taken place : the fact, that a person was bom
during the continuance of a valid marriage between his
mother and any man, is, unless non-access be proved,
conclusive proof of his legitimacy ; and judgments of certain
Courts are, as we have seen, conclusive proof of the facts
which they state.
77. In the next place the inference may be one that the
Court is bound to accept as proved until
"^dlwewime?" ^^ ^ disproved ; in this case is it said that the
Court " shall presume ;" or, thirdly, the infer-
ence may be one, as to which the Court is at liberty either
to accept it as proved until it is disproved.
Meaning of or to call for proof ofit in the first instance;
" may presume." in this case it is said that the Court " may
presume."
78. The two latter classes of inferences, which are styled
" presumptions," play, as will be seen, a very
todo^^nS^** important part in the proof of documents.
Sections 79 — 85 and Section 89 provide for
cases in which the Court shall presume certain facts about
documents ; Sections 86, 87, 88, and 90 provide for cases in
which the' Court may presume certain things about them;
in the one case, therefore, the Court is bound to consider the
presumption as proved until the contrary is shown ; in the
other, tiie Court may, if it pleases, regard the presumption
as proved until the contmry is shown, or may c»ll for inde-
pendent proof in the first instance.
79. llius in the case of every document purporting to
Presnmption as t>® «• Certificate, certified copy or other docu-
to certificate, cer- ment which is declared by law to be admis-
tified copy, &c gjjjje as proof of any fact, and which purports
to be certified by any Officer in British India or by any
authorized officer in any Native State in alliance with Her
Majesty, and which is substantially in correct form,
the Court shall presume,
that the document is genuine, and that the officer who
signed or certified it, held at the time the official character
which he claims in it, {Sec. 79).
Digitized by VjOOQIC
86 INTRODUCTION.
As to a document, purporting to be a record of judicial
evidence or confession or statement of an
Presumption as accused person, made in accordance with
to record of indi- , _l«xi.' ji. tj
cud evidence, ^^^» purporting to be Signed by a Judge or
other authorized officer, |
the Court shall presume
(1) that the document is genuine ;
(2) that the statements by the Judge or other
officer, as to the circumstances under which,
such evidence, statement or confession was
taken, are true ; and
(S) that such evidence, statement or confession
was duly taken, (Section 80).
As to a document purporting to be the London Oazette, the
Oazette of India or of any of the Local Governments, or of
any dependency of the British Crown ; or to be a News-
paper or Journal, or to be a copy of a Private Act of Parlia-
ment printed by the Queen's Printer ; or to be a document
directed by law to be kept by any person, if it is in due
form property custody,
the Court shall presume
that it is genuine, (Section 81).
p^rtin^t ^ As to a document p,mK>rtmg to be a
admissible in document, which would by law be admis-
English or Irish sible in an English or Irish Court, without
S? ot"^^ Pro^f of.ite seal or stamp or signature or of
matters. the official character of the person signing it^
the Court shall presume
that the seal, stamp or signature is genuine, and that the
person signing it held the official position which he claims
in it ; and the document shall be admissible for the same
purpose as that for which it would be admissible in England
or Ireland, (Section 82).
Presumptions as As to maps or plans purporting to be
to Maps, &c. made by the authority of Government
the Court shall presume that they were so made, and are
accurate, (Section 83).
As to books purporting to be printed or published under
the authority of the Government of any country and to
contain the laws of that country, and as to books purporting
to contain reports of decisions of the Courts
Digitized by VjOOQIC
INTEODUCnON. 37
the Court shall presume that they are genuine.
As to documents purporting to be powers of Attorney,
Presumption as executed before and authenticated by a No-
te powers of At- tary Public, or any Court, Judge, Magistrate,
tomey, British Consul or Vice-Consid or represen-
tative of Her Majesty or of the Government of India
the Court shall presume that they were so executed and
authenticated, (Section 85).
T. ^. As to a document called for and not pro-
Presumption as 1 J i*, i. i J ^
to document caU- duced after notice to produce
Moducer"^ ^^* the Court shall presume, that it was duly
attested, stamped and executed.
As to any document purporting to be a certified copy of
any judicial record of a country not forming
to ctnmidTo^ P^^ ^^ ^^^ Majesty's dominions, and certi-
of Judicial re- fied by a representative of Her Majesty or
cord of foreign of the Government of India in the manner
country, customary in such country,
the Court may presume that it is genuine and accurate,
(Sec. 86).
As to any book to which the Court may refer on a matter
Presumption as ^^ public or general interest, and any pub-
to books of pub- lished chart or map, produced for its
lie interest. inspection,
the Court may presume
that it was written and published by the person, and at
the time and place by whom or at which it purports to
have been written and published.
As lo a message forwarded from a Telegraph office, the
Presumption as Court may presume that it corresponds with
to Telegrapbic the message delivered for transmission at
Messages. j^j^^ office from which it purports to be sent.
As to a document, proved or purporting to be thirty years
old, and produced from proper custody,
Presumptions as .r /^ . xi. j. j.i- • x
to documents *he Court may presume that the signature
thirty years old and every other part is in the hand- writing
produced ^°^ of the person, by whom it purports to be
proper cus y. ^^ritten, and that it was duly executed and
attested by the persons by whom it purports to be executed
and attested.
Digitized by VjOOQIC
38 INTEODUCnON.
80. This concludes the provisions of the Law for the
proof of documents. Before we quit the
Exclusion of subject of documents, however, there is a
tiSS^c^''''" ^^^J^^^ ^^ ^^® ^^^^^ difficulty and impor-
tance to be disposed of, viz,, the cases in
which the existence of a document operates to exclude any
other evidence as to the matter to which the document
refers.
81. As to this there are two cardinal rules.
First, that (a) when the terms of a contract, grant, or
Exclusion of other disposition of property have been
oral evidence by reduced to the form 01 a document, or (6)
documentary in whenever any matter is required by law to
am cases. ^^^ .^ ^j^^ ^^^^ ^£ ^ document, no evidence
shall be given of the terms of such contract, grant or other
disposition of property, or of such matter, except the docu-
ment itself or Secondary Evidence of its contents in cases
in which Secondary Evidence would be admissible.
Secondly, that when the terms of a contract, grant or
other disposition of property, or a matter required by law
to be in the form of a document, have been proved by the
production of the document, no evidence of any oral agree-
ment or statement shall be admitted, as between the parties
to the instrument or their representatives, for the purpose
of contradicting, varying, adding to, or subtracting from, its
terms.
82. Both these rules, however, are subject to important
Exceptions exceptions. As to the first it is provided
that a public officer, whose appointment
must by law be in writing, may, nevertheless, be proved to be
such officer by the fact of his having acte'd as such, without
the production of the writing by which he was appointed.
In the next place Wills admitted to Probate in British India
may be proved by the probate. It is explained too that the
mention in a document of matters other than the terms of a
contract, grant or disposition of property, or which are not
required by law to be in writing, does not preclude proof of
them by any other means. For instance, the fact of a
receipt for money paid having been given does not prevent
the payment being proved in any other way.
Cases m which 83. The provisos to the second of the
^ssibfe """noT- ^^ve rules go far to modify its eflects ; and
withstanding the their operation forms one of the most subtle
Digitized by VjOOQIC
INTRODUCTION. 39
existence of a and difficult branches of the Law of Evi-
document. ^j^^^^ . rpj^^y ^^^^ ^^le following :—
(1) In the fii'st place any fact which would invalidate a
document, or which would entitle any person to a decree or
order in respect of it, may be proved. Thus a man may
show, that a written agreement was for an illegal purpose,
was obtained by fraud, or was without consideration, or was
executed by him during minority, or under a mistake in law
or fact (2) A separate oral agreement as to a matter on
which the document is silent and which is not inconsistent
with its terms, may be proved ; and so may (3) a separate
oral agreement constituting a condition precedent to the
attaching of any obligation under the document ; (4) a subse-
quent oral agreement to modify or reverse the original
contract, except when it is obliged by law to be in writing,
or has been duly registered ; (5) an usage or custom annex-
ing incidents to the contract, not expressly mentioned in
it, but Hot inconsistent with its express terms, or (6) any
fact which shows in what manner the language of the docu-
ment is related to existing facts.
In the application of this rule, it should be observed that
it applies only as between the parties to a document or their
representatives ; other persons than these may give evidence
of a contemporaneous oral agreement varying the terms of
the document.
84?. This introduces the difficult question of the extent
Employment of *o which extraheous evidence may be given
oral evidence in to aid in the interpretation of documents.
tionof^umente] "^^^^ ^ ^^^ ^^^^ ^^ Sections 93—100. The
umen ^^j^^ ^^^ ^^ Stated generally as follows :
(1.) When language is, on the face of it, ambiguous or
defective, its defects cannot be remedied by evidence.
Where, for instance, there are blanks in a deed, or where
the idea conveyed by its language is an ambiguous one,
such as when the oracle answered Pyrrhus in terms which
meant equally well either that he could conquer the
Eomans, or that the Romans could conquer him; in such
cases extraneous evidence cannot be given to show what
the meaning was.
(2.) When language is plain in itself and applies accu-
rately to existing f&cts, evidence cannot be given to show
that it was intended to apply to other &cts.
Digitized by VjOOQIC
40 INTRODUCTION.
(3.) When language is plain in itself but unmeaning in
reference to existing facts, evidence may be given to show
its meaning.
(4.) Where language woidd apply equally well to several
persons or things, but could not have been intended to apply
to more than one, evidence may be given to show to which
of such persons or things it was intended to apply.
(5.) Where language applies partly to one set of facts
and partly to another, but the whole of it does not apply
accurately to either, evi4ence may be given to show to
which it was intended to apply.
(6.) Where a document contains illegible or unintelli-
gible characters, foreign, obsolete, technical or provincial
terms, or abbreviations or words used in a peculiar sense,
evidence may be given to explain them.
The above rules of interpretation do not apply to docu-
ments which are governed by the Indian Succession Act :
Chapter XI of that enactment makes express provision for
the interpretation of Wills, and the two subjects are, accord-
ingly, kept apart.
85. This brings us to the conclusion of the 2nd part of
Part III. Pro- *^® -^ct. We have seen in Part I oi what
duction and effect the material of belief must consist; in Part
of evidence. jj^ ^jj^ mode in which that material must
be brought to the Judge's mind, viz., by oral or documentary
evidence, according to the circumstances of the case ; we
have now in Part III, certain directions as to the mode in
which witnesses are to be examined, and as to the principles
according to which the burthen of proof is thrown on -one
party or the other.
With regard to this latter point, the first and obvi-
The burthen of ous principle is that the burthen of proving
proof. the existence or non-existence of any fact
lies on the party who wants the Court to believe such exis-
tence or non-existence. If A sues B on a Bond, and B
denies its execution, the burthen of proving the execution of
the Bond lies on A and, till he has proved that, he has not
made out a primd facie case. Supposing, however, that B
admits the execution of the Bond, but pleads that it was
obtained by fraud or executed during minority, the burthen
of proving these assertions is now on him, as, since his
admission of the execution of the deed, the primd fade case
Digitized by VjOOQIC
INTRODUCTION. 41
is in favor of the plaintiff; unless, therefore, the defendant
makes out his plea of fraud or minority, the decision must
be against him. It will thus be apparent that tjie burthen
How the bur- ^f proof may be shifted during the proceed-
then of proof is ings according to the facts proved by the
shifted. witnesses or admitted by the parties. The
burthen of proof will, in the first instance, as a general rule,
be on the plaintiff as being the party who wants to put the
law in motion; but facts may be proved or admitted, which
will have the effect of shifting the burthen to the defend-
ant and will entitle the plaintiff to Judgment in his favor
unless they are disproved.
86. This shifting of the burthen of proof is in a large
„^ - number of instances the result of pre-
Bumptions7n sumptions. It is obvious that, when a
shifting the bur- presumption is raised, the burthen of
then of proof. disproving the fact presumed is thrown
upon the party who denies it. For instance, a man is
charged with having received stolen property knowing it to
be stolen ; the burthen of proof lies in the first instance on
his accusers : but if he is shown to be in possession of the
stolen property shortly after the theft, and to be unable to
account for his possession of it, a Judge may presume his
guilty knowledge, and, if he does so, the result will be to
shift to the accused person the burthen of disproving guilty
knowledge, and, in default of his succeeding in disproving
it, to render him liable to be convicted of the offence : or,
again, a man is sued on a Bill of Exchange, if the acceptance
is proved or admitted, the Judge may presume that there
was good consideration for it; thereupon the burthen of
proving that there was no consideration will lie upon the
defendant, and in default of his making this out. Judgment
will go against him. Wherever, accordingly, it is provided
in the Act that the Court may presume a thing, the
Judge has the power of throwing the burthen of proof
on whichever party he pleases: wherever it is provided
that the Court shall presume a thing, the burthen of
disproving it is thrown, irrespectively of the Judge's
opinion, on the party who denies it: wherever, again, it
is provided that the burthen of proving a thing is to
lie on any particular person, this is tantamount to a
provision that the Court shall presume against the exis*
tence of that thing, until the person in question has proved
its existence.
&
Digitized by VjOOQIC
42 INTRODUCTION.
Rules as to the 87. In the following instances special
t h^ e^ burthen**^ provision is made as to the party on whom
proof is to lie, the burthen of proof shall lie ;
I. When it is necessary, in order to render particular
evidence admissible, that some fact should be proved, the
burthen of proving that fact lies on the person who wants
to use the evidence: e. g., if A wants to prove a dying
declaration of B, he must prove that B is dead : if he wants
to use Secondary Evidence of a document, he must prove
that the original is destroyed or lost.
II. When a person is accused of an offence, the burthen
of proving that his case falls within any general or special
exception or proviso of the Indian PencJ. Code or other law,
lies on the accused, (Section 105).
III. When a fact is specially within the knowledge of any
person, the burthen of proving it lies on him, (Section 106).
IV. If a man is shown to have been alive within thirty
years, the burthen of proving him to be dead lies on the
person aflirming it, (Section 107).
V. If a man has not been heard of for seven years, the
burthen of proving him to be alive lies on the person assert-
ing it, (Section 108).
VI. When people are shown to have stood in the rela-
tion of partners, landlord and tenant, or principal and agent,
the burthen of proving that such relationship has ceased
lies on the person asserting it, (Section 109).
VII. When a person is in possession of anything, the
burthen of proving him not to be the owner lies on the per-
son asserting that he is not the owner, (Section 110).
Vni. When a person stands in a position of active con-
fidence, such as trustee, towards another, the burthen of
proving the good faith of any transaction between them
lies on the person in the position of active confidence, (Sec-
tion 111).
88. In all the above cases, as Ihe law directs on whom
Cases in which the burthen of proof is to lie, no option is
the Court may given to the Judge as to whether he will
presume. presume the fact or no: he is bound in
every instance to presume against the party on whom the
burthen of proof is directed to lie : but there are numerous
instances in which no such restriction is imposed, and where
the Judge, accordingly, can throw the burthen of proof on
Digitized by VjOOQIC
INTRODUCTION. 43
whichever siae he chooses, by presuming the fact, or by
calling for proof of it in the first instance. These are the
" natural presumptions" to which reference has been already
made, as being not the technical creations of law, but the
natural result of our experience of the world. They are in
fact inferences which the n^ind would draw of its own ac-
cord ; and all that the law does for them is to authorize their
being so drawn, in cases where the Judge thinks well to do so.
89. Cases of this nature are dealt with in Section 114,
Facts which may which provides that "the Court may pre-
be presumed. sume the existence of any fact which it
thinks likely to have happened, regard being had to the
common course of liatural events, human conduct and pub-
lic and private business in their relation to the facts of the
case;" in other words, wherever the ordinary course of
human events and the general tendency of human character
render it probable, under the circumstsmces of the case, that
a thing is true, the Court is at liberty to presume its truth,
to exempt the party asserting it from the necessity of proof
in the first instance, and to throw upon the party who
denies it the burthen of showing that is not true. Whether
in any particular case it is safe so to do, is a question which
the Judge must decide for himself according to his judg-
ment. This is made clear by the Illustrations. Thus it is
in the ordinary course of things that a Bill of Exchange
should be accepted for good consideration. A Judge may
therefore, and naturally will, as a general rule, presume that
it was so accepted, and will throw upon the person, who
denies that good consideration was given, the burthen of
proving it. But a Bill may be brought into Court under
circumstances, which would render it dangerous to apply
the general presumption ; suppose, for instance that A, the
drawer of a Bill, is a man of business, and B, the acceptor is
a young and ignorant person, completely under A*6 influence.
Here the ordinary presumption that Bills of Exchange are
given for good consideration is countervailed by the pre-
sumption that in this case B was over-reached by A, and the
Court might reasonably throw upon A the burthen of
proving that consideration did, as a fact, pass.
90. Various other instances of the same rule are given
in the Illustrations to Sec. 114. It is, for
lUustrations. example, likely in the natural course of
things that a man who is found in possession of stolen goods,
shortly after the theft, and who cannot account for their
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44 INTRODUCTION.
possession, has either stolen them or received them with a
guilty knowledge : the Court may, therefore, presume this
to be so, if it thinks well : but cases may arise in which
such a presumption would be most unfair : a marked rupee
is traced to a shopkeeper's till: he can give no specific
account as to how it got there, yet it does not even raise
a suspicion against liim. So, again, the Court may pre-
sume, as being in accordance with the common course
of things, that an accomplice is unworthy of credit : but
there are cases in which, from the character of the parties
and of the offence charged, the most implicit reliance may
be placed in what an accomplice says. So again tlie
Court may presume that evidence which might be, and is
not produced, would be unfavourable to the party not pro-
ducing it : but it might well be that special circumstances,
as, for instance, family considerations, would prevent a party
from calling a witness whose evidence would be in the highest
degree favorable to his cause ; and it would be, therefore,
unfair to make the usual presumption. Such presumptions
ought not, therefore, to be obligatory. In all these, and
similar cases, the Judge may presume ; it is for him to decide
whether or not he ought to do so.
91. We have next in Sections 112 and 113 two instances
. oi conclusive proof. The fact of a person
• J^^^\e^th^^! ^®^^g ^^^^ during a valid marriage between
his mother and any man, or within 280 days
after its dissolution, the mother remaining unmarried, is
conclusive proof of his legitimacy, unless non-access be
Conclusive proof Proved, (Section 112); and a notification in
of cession of Ter- the Gazette of India of a cession of British
ritory. Territory to a native Ruler, is conclusive
proof of such cession and of its validity, (Section 113);
other instances of conclusive proof are afforded by those
Judgments of Probate, Matrimonial, Admiralty or Insolvency
Courts, which, as we have seen, are conclusive proof of any
legal character or of any absolute right conferred or declared
by them to exist. In all such cases further proof is, of course,
superfluous, and all contradictory evidence inadmissible.
92. The subject of " Estoppel" is next dealt with. Under
the English Law a man may be estopped by
EstSl^ ^^'^ ""^ ^^^ language of an instrument to which he
is a party, or of a record of legal proceedings,
in which he was concerned, or by his own conduct in some
transaction, from setting up, as against any person who was
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INTRODUCTION. 45
a party to that instrument or those proceedings, or who was
affected by that conduct, a contrary state of things. Ques-
tions of great nicety and difficulty have arisen in the Courts
as to the extent to which these estoppels operate, and as to
the statements and persons that fall within tneir scope. The
tendency of modem opinion has been, however, unfavorable
to the utility of estoppels, and the present law retains them
only in cases which fall imder the last of the three classes just
mentioned, those, namely, in which a man is estopped by his
own previous behaviour. The following are the only estop-
pels, which will, for the future, be known to the Indian law.
I. When a person has, by his declaration, act, or
1 V J omission, intentionally caused or permitted
claratioro/con' another person to believe a thing to be true,
duct. and to act on such belief, neither he nor his
representative can, in a proceeding between
himself and such person or his representa-
tive, deny the truth of that thing.
II. A tenant of immoveable property cannot,
Estoppel of ten- <i^ri°g ^^^ continuance of the tenancy, deny
ant. that the landlord had, at the commencement
of the tenancy, a good title to the property
leased; nor can a person, who came upon
immoveable property by the license of the
person in possession thereof, deny such
other person's title at the time when such
license was given.
III. An acceptor of a Bill of Exchange cannot
deny that the drawer had authority to draw
Estoppel of ac- or endorse it ; nor can a bailee or licensee
ExTh a ng"? of ^®^y ^^** ^^^ ^^^^ ^^ licensor had, when
hakee, & licensee, the bailment or license commenced, authority
to make it. This is, however, subject to the
important exception that a bailee may, if he
has delivered the bailed goods to a person
other than the bailor and is sued by the
bailor in respect of such delivery, plead that
such other person has a right to them as
against the bailor.
93. These are the only cases in which a man is precluded
Except the ^7 1*^ ^^"^ setting up what facts he
above no estop- pleases. Unless a case can be brought within
pels. these sections, the mere fact that a state-
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46 INTRODUCTION.
ment is contained in a deed, to which some person is a party,
will not disable him from endeavouring to prove the con-
trary, though it may, of course, be evidence of an admission
on his part, and so render it difficult for him to do so. In
like manner, the mere fact that, a statement is contained in
a judgment, to which some person is a party, will not estop
him from setting up the contrary. The Judgment may bar
an action by showing that the same cause of action has been
already disposed of; or it may be conclusive proof of some
fact under Section 41 of the Act, in which case, of course,
no contradictory evidence can be given ; or again, it may
show that a person has brought himself within the scope of
some of these sections as to estoppel, and is so precluded
from denying the truth of some fact : but unless tnis is the
case, he will be at liberty to prove any fact, notwithstanding
that a Judgment, to which he was a party, contains a state-
ment about it to a contrary effect.
94. We now proceed to the consideration of the rules
Rules as to the governing the examination of witnesses.
examination of All persons, we have already seen, are corn-
witnesses, petent to testify, unless the Court consider
that by reason of tender years, extreme old age, disease or
infirmity, they are incapable of understanding the questions
put to them and of giving rational answers. The last rem-
nant of the system of excluding witnesses, which still lin-
gered in the law of the High Courts, is swept away by the
provision that husbands and wives shall be in all civil and
criminal cases competent witnesses against one another.
95. There are various cases, however, in which witnesses
are exonerated or disabled from answering
gist^^ates no't ^ *^ particular matters. In the first place
compeUable to no Judge or Magistrate can, except on the
answer certain special order of some Court to wluch he is
questions. subordinate, be compelled to answer any
question as to his own conduct in Court as such Judge or
Magistrate ; though he may be examined as to other matters,
which occurred in Court while he was so acting. No person
Communications again can be compelled to disclose any com-
during marriage, munications made to him or her during
marriage by any person to whom he or she is or has been
married ; nor may such communications be disclosed, unless
by consent of the other party, except in suits between mar-
ried persons, or prosecutions in which one married person
is accused of an offence against another.
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INTRODUCTION. 47
96. No person, again, can give evidence derived from
Affairs of State unpublished official records, except with the
• and official com- permission of the department concerned;
munications. j^or can a public officer be compelled to dis-
close communications made to him in official confidence ;
nor a Magistrate or Police Officer to speak to the sources of
his information as to the commission of any offence.
97. The next class of excluded evidence are profes-
Le al ad • sional communications made by or on be-
not to disclose half of a client to his barrister, pleader,
professional com- attorney or vakeel. No such person may,
munications. without the client's express consent, disclose
any such communication, when it is made in the course
and for the purpose of his employment ; nor may he state
the contents or condition of any document, with which he
became acquainted in the course and for the purpose of
such employment, or disclose any advice given by him
to his client. The protection, however, in this case does
not extend to (1) communications made in furtherance of
any criminal purpose, nor to
(2) any fact, observed- by a Barrister, Attorney, Pleader
or Vakeelin the course of his employment, showing that a
crime or fraud has been committed since the commencement
of his emyloyment. A Solicitor therefore, who, during his
employ, observed that his client had been tampering frau-
dulently with his own books, would not be exempted from
disclosing the fact.
98. An important modification in the existing law has
Client does not' ^®®^ ©ff^cted by the provision in Sec. 128,
waive his privi- t^a^ ^ party to a Suit who gives evidence
lege by giving at his own instance is not to be deemed
evidence. thereby to have consented to a disclosure
by his legal adviser of professional communications ; and
that if he caU his legal adviser as a witness, he does not
consent to his disclosing professional communications, unless
he questions him on matters which, but for such question,
he would not be at liberty to disclose. As the law pre-
viously stood, if a party to a suit gave evidence therein at his
own instance, he waived his privilege and was liable to have
his communications with his legal adviser disclosed. As it
may often be essential for the purpose of a suit that a
party to it should give evidence in it at his own instance,
the hardship of entailing such a consequence upon the
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48 INTRODUCTION.
giving of such evidence was, of course, extreme ; and the
E resent enactment appears to provide for the subject in a
lirer and more reasonable manner.
99. On the same principle no one can be obliged to dis-
close confidential communications between
diScot^den* himself and his professional adviser, unless
tial communica. he offers himself as a witness : in that case
tion with hia le- he can be compelled to disclose any such
gal adTiaer. communications as the Court thinks neces-
sary to explain his evidence, but no others.
100. Nor again, can any witness, who is not a party to
Witness need ^^^ suit, be compelled to produce his title
not produce title deeds or any document which might tend
Deeds. ^ criminate him, unless he has agreed in
writing to produce them : nor can he be compelled to produce
deeds in his possession, belonffing to another person, which
that person, if they were in his possession, might refuse to
produce ; unless, of course, the person cencemed consents to
their being so produced.
101. On the other hand a witness cannot refuse to
Witness must aiiswer a question as to a fact, relevant or in
answer criminat- issue, simply on the ground that the answer
ing questions. ^in iqj^^ ^o criminate him, or expose him to
penalty or forfeiture. No such answer, however, can expose
the witness to arrest or prosecution, nor can it be made use
of in any criminal proceeding again^ him, except in case of
a prosecutioil for giving false evidence.
102. The question of the sufficiency of the uncon-oborated
evidence of an accomplice to support a conviction has
been frequently discussed in the Courts : all doubt on the
subject is now removed by the provision in Sec. 133, that a
conviction is not illegal merely because it is
comS''^''^^' grounded on the uncorroborated evidence of
an accomplice. Another dubious point is
cleared up by the enactment in Sec. 134 that no particular
number of witnesses are required for proof of any fact.
103. We come next to the mode in which witnesses shall
be examined. The Judge is to allow only
Mode in which such evidence to be given as is, in his opi-
b^^xa^eT ^ »io°' relevant ; when the relevancy of a fact
depends on proof of some other fact, the
Judge may either insist on that other fact being proved
first, or may accept the party's undertaking that it shall be
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INTRODUCTION. 49
proved at a subsequent stage. Thus if it is proposed to
prove one of the statements which are relevant only if the
person who made them is dead, the Court may insist on
having that person's death proved before admitting the
statement, or may admit the statement first on an under-
taking that the death shall be subsequently proved.
104. The examination of the witness by the party who
. . calls him is termed his '' examination-in-
Crosi^x^na'- ^hief ;" this is followed by his " cross-exami-
tion and Re-eza- nation" by the adverse party, and this again
miaation to what by his " re-examination" by the party who
topics confined. ^^j^j j^j^^^ g^^j^ examination and cross-
examination must relate to relevant facts, but the cross-
examination may relate to relevant facts other than those
with which the examination-in-chief was concerned. The
re-examination must, except with the permission of the
Court, be directed to the explanation of matters referred to
in cross-examination ; and if the Court allows new matter to
be introduced in re-examination, the opposite party has
a right to cross-examine on the matter so introduced. A
person does not, however, become a witness by the mere fact
of producing a document in obedience to a summons, and
unless he is called as a witness he cannot be cross-examined :
but witnesses to character may be cross-examined and re-
examined in the same manner as any other witness.
105. The important distinction between the examination
When leading ^.nd cross-examination is that in examina-
questionsmaybe tion and re-examination leading questions,
»«ked. that is, questions which suggest the answer
which the questioner wishes or expects to receive, must not
be asked, except with the permission of the Court : while in
cross-examination leading questions may be asked. The
Court, however, is to permit leading questions in examina-
tion or re-examination, as to matters which are intro-
ductory or undisputed, or which have in the opinion of the
Court been ahready suflSciently proved.
106. We next have a rule for the purpose of carrying out
the provisions of Section 91, as to the ex-
Witness about c^^giQJ^ Qf oral ty documentary evidence ;
deSe Va docvL- this is tliat any witness, who is about to
ment in existence give evidence as to a contract, grant or
may be stopped, ^^j^^j. (Jigposition of property, may be asked
whether it was not in writing, and if he says that it was,
he may be stopped, and the production of the document
7
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50 INTRODUCTION.
enforced, or the right to give Secondary Evidence made out
This rule is extended to any document which, in the opinion
of the Court ought to be produced. Care must, however, be
taken not to apply it to cases in which oral evidence is
given of statements of other people about the contents of
documents, when those statements are relevant. Supposing,
for instance, that the question was whether A had murder-
ed B. A witness might prove that A had said " B's bond
is iniquitous, I will kill him sooner than pay it," without
the bond being produced ; the reason obviously being that
what the witness wants to prove is not the contents of the
document, but A' 8 feding about the contents of the docfw-
Tiient, as supplying a motive for his crime.
107. A witness, also, may be asked about previous state-
Previous Staite- ments made by him and reduced into writ-
ments. ing without such writing being proved:
before, however, the writing can be proved for the purpose
of contradicting the witness, his attention must be drawn
to such parts of it as are to be used for the purpose of
contradicting him.
108. This brings us to the class of questions which are
QuestionB as to asked, not for the purpose of proving or dis-
character. proving relevant matter, but for the purpose
of testing, impugning or confirming the veracity of a wit-
ness. Such questions in India especially are of material
importance in guiding the Judge's mind in his view of the
case. For this purpose it is provided that a witness may be
asked any question which tends (1) to test his veracity,
(2) to discover who he is and what is his position
in life,
(3) to shake his credit by injuring his character.
It is no objection to the asking of such questions that the
answer to such questions might tend to criminate the
witness or expose him to penalty or forfeiture. It is neces- ,
sary, however, to make carefiil provision against so powerful
an engine being oppressively or wantonly employed. It
would be a grievous hardship if every person, who came
forward to give evidence, was liable, at the caprice of an
unscrupulous cross-examiner, to have every detail of hi$
life dragged into the light, and to be forced to reply to
interrogations, which suggest what the interrogator dares
not assert, and thus are merely slanders in disguise. To
the Judge, accordingly, is confided the delicate and res-
ponsible task of admitting or excluding questions asked
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INTRODUCTiaN. 51
with the view of testing or injuring the witness' character.
When a question is asked merely for this purpose the Court
is to decide whether the witness is to be compelled or not to
answer it. In deciding whether such a question is proper or
not, the Court is to consider, firatly, whether the imputation
conveyed by it is such as seriously to affept the Court's
opinion as to the witness* veracity, or whether, frojn remote-
ness of time or from its character, it would affect it only in a
very slight degree ; and, secondly, whether there is a great dis-
proportion between the importance ofthe imputation conveyed
and the importance of the evidence given. If the evidence
is very unimportant, and the imputation on the witness'
character very serious, the question ought not to be asked.
A witness for instance, who proves the posting of a letter or
the entrj'^ of some unimportant item, ought not to be asked
questions, the answers to which might blast his reputation.
With a view to such considerations as these, it is further
provided that the Court may infer from the witness' refusal
to answer that the answer, if given, would be unfavorable to
him, but that it is not bound to do so.
In no case ought such a question to be asked, unless the
person asking it has some reasonable grounds for supposing
the imputation, which it conveys, to be true. Barristers,
Attorneys and other professional persons offending against
this rule are liable to be reported to the High Court or other
.authority to which they are subordinate.
109. The Court has also the power of forbidding questions
Indecent or scan- which it regards as indecent or scandalous,
dalous questions, unless they relate to facts in issue or are in-
dispensable to the proof or disproof of facts in issue. Ques-
tions also that appear to be intended to insult or annoy, or
which are couched in a needlessly offensive form, may be
forbidden.
110. It is obvious that questions asked merely to dis-
Answerstoques- ^^^^^^ ^ witness introduce matter altogether
tiona as to cha- foreign to the inquiry, and that, if contro-
racter cannot be versy about the matter so introduced were
contradicted. allowed, the Court would be occupied with
deciding not the merits of the case but the merits of the
witnesses, and that thus any suit might be indefinitely pro-
tracted. It is, therefore, provided that, whenever a witness
has answered a question asked merely for the purpose of
discrediting him, no evidence shall be given in the case to
contradict his answer : the only remedy, if he answers falsely.
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52 INTRODUCTION.
is to prosecute him afterwards for giving false evidence-
To this rule, however, there are two exceptions, allowed
perhaps, because they are matters which admit of clear and
easy proof If a witness is asked whether he has been
previously convicted and denies it, the previous conviction
may be proved : and if he is asked about and denies any
fact tending to impeach his impartiality, as " are you not the
plaintiff's brother"? or " have you not received a bribe from
the defendant/' the fact impeaching his impartiality may
be proved.
111. Besides being asked questions tending to discredit,
Evidence to ^ witness may be discredited by the evi-
discredit a wit- dence of other persons to the effect that (1)
^®^^- they from their knowledge of the witness
believe him to be unworthy of credit, (2) that the witness
has been bribed or has accepted the offer of a bribe, (3) that he
has on former occasions made statements inconsistent with
his present evidence, and (4), in prosecutions for rape or
attempts to rape in which the prosecutrix is a witness, that
she was of generally immoral character. Any of the above
facts may be proved by the party cross-examining a wit-
ness, and, with the consent of the Court, by the party who
calls him.
112. Here, again, precautions are taken to prevent the
Restrictions to Court going into irrelevant controversy by
which such evi- the following rule : Where a witness states
dence is subject, ^hat he believes another to be unworthy
of credit, he may not, in his examination-in-chief, be asked
his reasons for so believing : but in cross-examination he
may be asked for his reasons, and his answers to such
questions cannot be contradicted, though, of coui-se, they may
render him subsequently liable to a prosecution for giving
false evidence. It is clear that but for some such rule there
might be a pitched battle fought over the character of every
witness, and that suits would be simply interminable.
113. Next, follow provisions for corroborating a witness
r^ u 4.- ^y asking him about circumstances, other
Corroboration. ^^^^ ^^^^^ ^^ ^^^^^ ^^ speaks, which he
observed about the same time or place. Another mode of
corroboration is by proving a former statement to the same
effect as the witness' present evidence, made by the witness
(1) either at or about the time when the fact, to which
he speaks, took place, or (2) before any competent legal
authority.
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INTRODUCTION. 53
114. There are, as we have seen, some cases in which.
Relevant state. ^^4^^ the provisions of this Act, a peraon's
ments may be statement becomes relevant.* Wherever this
corroborated or is the case, it is obviously right that the
contradicted. statement should, as far as possible, be
submitted to every test to which oral testimony is sub-
mitted. It is provided, accordingly, in Section 158 that in
eveiy case in which, under Section thirty-two or thirty-
three of the Act, a statement is made relevant, the state-
ment may be corroborated or contradicted, or the credit of
the person, who made it, may be impeached or confirmed by
any evidence which would have been admissible against
that person, had he been called in cross-examination. Take
for instance the case of an entry in a deceased trader's books :
any former entry or statement, corroborative or contradic-
tory, or any fact, tending to show that the person making
it was untrustwoiiihy or partial, which might have been
proved if he had been cross-examined, may be proved for
the purpose of increasing or diminishing the importance to
be attached to the entry.
115. Sometimes a witness needs to refresh his memory
Refreshing me- as to the facts about which he speaks. This
mory. he may do by refening to any writing made
by himself at the time of the transaction to which it refers,
or so soon after as that his memory was still fresh ; or even
to a document made by another person and read by the
witness, and known by him to be correct while his memory
was still fresh. A witness may also, for the purpose of re-
freshing his memory, refer to a copy of any document, to
which he might refer, if it were produced, provided that
good cause for the non-production of the original be shown.
He may also testify to facts stated in any document, to
which he might refer to refresh his memory, though he has
no specific recollection of them, if he is sure that wiey were
correctly recorded. Any paper used to refresh the memory
must be produced and shown to the opposite party, who
may, if he pleases, cross-examine upon it.
116. It sometimes occurs that a witness is summoned to
Witness sum- Produce a document, which he has a right
moned to produce to refuse to produce, or which would, if
document must produced, be inadmissible as evidence. In
bring it toCourt. ^j^j^ ^^^ j^^ ^^^^^ notwithstanding any
objection that there may be to its production or admissi-
* See arite, paras. 42 and 43.
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54 INTRODUCnoX.
bility, bring it to Court, and the Court will decide as to
whether he is bound to produce it, and as to whether it is
admissible. In order to decide on its admissibility the
Court may, unless it be a document of State, inspect it, or
take evidence about it.
117. We have seen* that previous notice to produce a
document is in some cases necessary in order
ed^^^d'll!" *^ "^.^'^.^ Secondary Evidence of its contents
Bpected must be admissible in case of its non-produetion.
given in evidence This notice to produce may aflTect the posi-
1 required, ^j^^^ ^£ ^j^^ party giving it If he gives
notice to produce, and at the trial calls for the document
and inspects it, he is bound to put it in as evidence if the
other party requires it. The law will not allow him to com-
pel its production, and see its contents, and then make use
of it or not, according as it strengthens or impairs his cause.
Another provision, grounded on the same principle of fair
p f • P'*y> is that a person refusing to produce a
to p^^ce a^do? document, which he had notice to produce,
cument cannot cannot afterwards, except with consent of
afterwards put it the opposite party or by order of the Court,
m as evidence. hi^gelf use itTs evidence.
1 18. We come next to the Judge's power to ask questions.
It frequently happens that the parties do
^J^t^nLf^nnl ^ot, lu tfaclr qucstious, elicit all the facts
to ask questions. ' ^ ^ i • /» xi *j^ c
necessary to a sound view oi the merits of
the case. A plaintiff may have some weak point in his case
which he is afraid of betraying and so dexterously avoids, or
a defendant may fail to perceive the import of some answer
given and allow it to pass uncriticized : in any such case it
is highly important that the Judge should be armed with
full power enabling him to get at the facts. He may accord-
ingly, subject to conditions to be inmiediately noticed, ask
any question he pleases, in any form, at any stage of the pro-
ceedings, about any matter relevant or irrelevant, and he
may order the production of any document or thing. No
objection can be taken to any such question or order, nor
are the parties entitled, without the Court's permission, to
cross-examine on the answers giv.en. This general power.
Restrictions on however, is very closely restricted In the
Judge's power to first place, the Judgment must be based on
aak questions. relevant facts, and those relevant facts
must have been duly proved : next, the Judge cannot compel
* See antCy paras. 70 and 71.
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INTRODUCTION. 55
a witness to answer any question, or to produce any docu-
ment which he would be entitled to refuse to answer or
produce, at. the instance of the opposite party ; nor may the
Judge ask any of the questions as to credit which would be
improper if asked by the adverse party ; nor can he dispense
with primary evidence of a document unless the facts of the
case show that Secondary Evidence is admissible.
A Judge, accordingly, cannot, by the exercise of the powers
conferred by this section, import into the decision of the
case any fact which is not relevant under the Act, nor can
he in any case dispense with the prescribed mode of proof,
or ask questions to credit, except such as would be permitted
if asked by the parties. Thus restricted, the power of asking
questions, is of obvious utility in a country like India,
. where, in the vast majority of cases, no advocate is employed
but the Judge has to make out the truth as best he can from
the confused, inaccurate and often intentionally false accounts
of ignorant, excited and mendacious peasants.
119. The Act concludes with repeating the provision of
Improper ad- -^^^ H ^^ 1^^^ to the effect that the impro-
iniasion or exclu- per admission or rejection of evidence is not
aion of evidence, ground for a reversal of the Judgment or
for a new Trial of the case, if the Court considers that, in-
dependently of the evidence improperly admitted, there was
evidence enough to justify the decision, or that, if the
rejected evidence had been admitted, it ought not to have
varied the decision. When, therefore, an appeal is grounded
on the improper exclusion or admission of evidence, the
appellant must be prepared to- show, not only that there has
been an improper admission or exclusion, but that a mis-
carriage of justice has been thereby occasioned.
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Digitized by VjOOQIC
THE
INDIAN EVIDENCE ACT,
No. I OF 18T2.
Jtecevied the assent of His Excellency the Governor-
General on thelbnYi March 1872.
Whereas it is expedient to consolidate, define and
amend the Law of Evidence : It is
Preamble. t_t. i. ^ n ^^
hereby enacted as loUows : —
PART I.
RELEVANCY OF FACTS.
Chapter I. — Preliminary.
Short title.
1. This Act may be called '' The
Indian Evidence Act, 1872 :"
It extends to the whole of British India, and
applies to all judicial proceedings in or
before any Court, including Courts
Martial, but not to affidavits presented to any Court
or Officer, nor to proceedings before an arbitrator ;
Commencement and it shall come into force on the
of Act. first day of September 1872.
[Evidence is one of those matters which are governed by the law of
the countiy in which the proceeding takes place, and not by that
of the country where the contract sued upon was inade, or the cause
of action arose. Thus a statement or a document might be inadmis-
sible in a Court in British India, though it would be admissible in a
Frend^ Court, notwithstanding that the contract sued on was made in
France, and the parties were Frenchmen : and vice versd.
Digitized by VjOOQIC
2 RELEVANCY OF FACTS. [CH. T,
This principle of law was thus laid down by Lord Brougham ;
" The law of evidence is the lex fori which governs the Courts :
whether a witness is competent or not, whether a certain matter
requires to be proved by writing or not, whether certain evidence
groves a certain fact or not, these and the like questions must be
etermined, not lege loci contractdsy but by the law of the country
where the question arises, where the remedy is sought to be enforced,
and where the Court sits to enforce it"— Sain v. the Proprietors 0/
the Whitehaven Hailway Company and Forbes, 3 H. L. C, 1.]
Repeal of en- 2. On and from that day the fol-
actments. lowing laws shall be repealed : —
(1.) All rules of evidence not contained in any
Statute, Act or Regulation in force in any part of
British India :(«
(2.) All such rules, laws and regulations as have
acquired the force of law under the twenty-fifth sec-
tion of ^The Indian Councils' Act, 1861,' in so far
as they relate to any matter herein provided for ;(2)
and
(3.) The enactments mentioned in the schedule
hereto, to the extent specified in the third column
of the said schedule.
But nothing herein contained shall be deemed to
effect any provision of any Statute, Act or Regula-
tion in force in any part of British India and not
hereby expressly repealed.
[ (1.) This has the effect of rei)ealing the whole of the English
Common Law on the subject of evidence so far as it was in force in
British India. The decisions of the English Courts on points of
evidence are accordingly for the future of no binding effect m Indian
Courts, and can be referred to only for the purpose of explaining or
illustrating the mining of the present Act.
The Hindu and Mahummadan Laws abound in rules of evidence,
as e. g,, as to the number of witnesses requisite to prove particular
matters, the exclusion of certain witnesses, and the presumption to
be ndsed in certain cases. These rules do not appear to have been
amon^ those portions of the existing law of the country which the
Britiali Power retained in force on assuming the administration of
Government. At any rate since the commencement of the present
century the Courts have not considered themselves in any way bound
by them. All doubt on the subject is now removed.
(2.) Clause (2) refers to various rules as to evidence issued by
the Government in "Non-Regulation" Provinces previous to the
Indian Councils* Act, 1861, and which became law under that enact-
Digitized by VjOOQIC
SEC. 2 — 3.] RELEVANCY OF FACTS. 3
ment. In the Puirjjib, for instance, there was in force till recently a
special rule as to the production of a day-book and ledger for proof
of book-debts. Other provisions of a like nature are believed to have
been in force in Oudh, the Central Provinces and elsewhere.]
3. In this Act the following words and expres-
sions are used in the following senses,
ciiuse.'^'^^***'''''' unless a contrary intention appears
from the context : —
'' Court" includes all Judges and Magistrates, and
"Co rt" ^^^ persons, except arbitrators, legally
authorized to take evidence.^^)
"Fact." '^ Fact'' means and includes —
(1) anything, state of things, or relation of things,
capable of being perceived by the senses 'P^
(2) any mental condition of which any person is
conscious.
Ilhistrations.
fa,) That there are certain objects arranged in a certain order in
a certain place, is a fact.
(h.) That a man heard or saw something is a fact.
(c.) ^ That a man said certain words is a fact.
fd.) That a man holds a certain opinion, has a certain intention,
acts in good faith, or fraudulently, or uses a particular word in a par-
ticular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
(e,) That a man has a certain reputation is a fact.
One fact is said to be relevant to another when
the one is connected with the other in
^ ^^^ * any of the ways referred to in the pro-
visions of this Act relating to the relevancy of facts.
^ ^ . . „ The expression " Facts in iss'ue"^^)
"Facts in issue," i^ . , i
means and mcludes —
any fact from which, either by itself or in connec-
tion with other facts, the existence, non-existence,
nature, or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, neces-
sarily follows.
Explanation, — Whenever, under the provisions of
the law for the time being in force relating to Civil
Digitized by VjOOQIC
4 RELEVANCY OF FACTS. [CH. I,
Procedure, any Court records an issue of fact, the
fact to be asserted or denied in the answer to such
issue, is a fact in issue.
Illustrations.
A is accused of the murder of B.
At his trial the following facts may be iu issue :—
That A caused B's death ;
That A intended to cause B's death ;
That A had received grave and sudden provocation from B ;
That A, at the time of doing the act which caused B's death, Tras
by reason of unsoundness of mind, incapable of knowing its
nature.
^' Document" means any matter expressed or des-
cribed upon any substance by means
umen, ^^ letters, figures, or marks, or by
more than one of those means, intended to be used,
or which may be used, for the purpose of recording*
that matter.
Illustrations.
A writing is a document.
Words printed, lithographed or photographed are documents.
A map or plan is a document.
An inscription on a metal plate or stone is a document.
A caricature is a document.
•» Evidence." ^^ Evidence" means and includes — (^)
(1) all statements which the Court permits or
requires to be made before it by witnesses, in rela-
tion to matters of fact under inquiry ;
such statements are called oral evidence :
(2) all documents produced for the inspection of
the Court ;
such documents are called documentary evidence.
A fact is said to be proved when, after consider-
ing the matters before it, the Court
either believes it to exist^ or considers
its existence so probable that a prudent man ought,
under the circumstances of the particular case, to
act upon the supposition that it exists. <5)
Digitized by VjOOQIC
SEC. 3.] RELEVANCY OF FACTS. 5
A fact is said to be disproved when, after consi-
, dering the matters before it, the Court
isprove . either believes that it does not exist,
or considers its non-existence so probable that a pru-
dent man ought, under the circumstances of the par-
ticular case, to act upon the supposition that it does
not exist.
^^„ ^ , „ A fact is said not to be proved when
** Not proved. ' ... .., i ,.* i
it IS neither proved nor disproved.
[ (1.) The provisions of the Act, therefore, will apply to Commis-
sions to take evidence under Civil Procedure Code, Sections 175 —
181, or under Code of Criminal Procedure, Section 330, but not to
examinations of witnesses by the Police, Section 119.
(2.) " Fact" is often understood as denoting some event which
occurred or something which was done as opposed to something said,
or some opinion or feeling of mind or body. This is not the sense
in which it is used in the Act : statements, feelings, opinions and
states of mind are lust as mucn " facts" as any other circumstance
of which, through tne medium of the senses or by our own self-
consiousness, we become aware, and all, if they comply with the
requirements of the Act as to relevancy, are equally admissible for
the purpose of proving or disproving the matter to which they relate.
*' Capable of being perceived by the senses" means "of such a
nature as that, if it were submitted to the operation of some sense,
a perception would result." Many things are " facts," although,
under existing circumstances, they are not perceptible by any sense
nor suggested to us by our self -consciousness. The existence of a
man's brain, for instance, is a fact, because, though, while he is alive,
it cannot be perceived, yet it may, after his death, be seen and felt
and otherwise perceived. The existence of a star, beyond the reach
of the best telescoi)e, is a fact because, though not perceptible to
our senses as matters now stand, it is capable of being perceived,
supposing that it were nearer to us, or that our means of telescopic
observation were greater,
(3.) For the various ways into which one fact may be so related to
another as to be relevant to it, see Chapter II, Sections 6—55.
^ A fact " in issue" is a fact out of which some legal right, liability
or disability, involved in the inquiry, arises, and upon which, accord-
ingly, a decision must be arrived at. Supposing the inquiry to be
whetner A is entitled to succeed to B's property as his son, the
fact of A being B's son, the facts of B's death and the existence of
B's property, would then be facts in issue because out of them
arises du-ectly A's right of succession. Supposing the inquiry to be
whetjier A is liable to punishment for having murdered B, the fact
of B having been killed by A, the fact of A's motives and inten-
tions at the time, the fact that he did it in self-defence or by accident
or intentionally, would all be facts in issue because out of them,
taken conjointly with one another, would arise A's liability to punish-
Digitized by VjOOQIC
6 RELEVANCY OF FACTS. [CH. I,
ment. Any other facts, bearing on, or connected with these facts in
issue in any of the manners pointed out in Chapter II, are relevant
facts.
(4.) " Evidence," as thus technically defined, does not include the
whole material of the Judge's belief; for instance a Magistrate or
Session Judge may question the prisoner, (see Grim. Pro. Code, Sees.
193 and 250,) and the prisoner's answers to the Magistrate may be
used against him'in other trials : but they are not ' evidence' under
this definition as not being made by a witness. So also the exami-
nation of the accused before the Committing Magistrate is to be given
in evidence at the Sessions trial (C. P. C, S. 248) : and where one of
several accused persons makes a confession involving himself and
some of the co-accused, it may be taken into consideration as against
the person so involved, see post^ Section 30. These statements are
excluded from the definition of evidence probably to mark the smaller
degree of credibility, as a general rule, attaching to them. Another
important ingredient of belief, which does not fall within the defini>
tion of 'evidence' is the Judge's own observation of the witness'
demeanor and appearance. It has been objected that the Act omits
a third class of evidence, viz., the evidence of things actually pro-
duced for the ocular inspection of the Court. " In the Code" says
Mr. Norton,* " no mention is made of the evidence of Things."
This is not, it is submitted, quite accurate. Provision is made
for this matter in the last clause of Section 60, where it is
enacted that wherever oral evidence is given about the existence or
condition of a material thing other than a document, the Court may,
if it thinks fit. require the production of such material thing for its ^
inspection. Tne reason for the omission of things so produced, as a
distinct class, is correctly pointed out by Mr. Norton, viz., that they
cannot form part of the facts of the case except by means of oral
evidence, and so properly fall under it, as provided in Section 60.
(5.) Absolute certainty is seldom to be had in the affairs of life,,
and we are frequently obhged to act on degrees of probability which
fall very far short of it indeed. Practical good sense and prudence
consist mainly in iud^g aright whether in each piurticular case the
degree of probabiuty is so high as to justify one in regarding it as
certainty aM acting accoFdingly. . A. merchant receives intelhgence
that some firm is solvent, or that the rate of exchange will vary, or
that some change in the tariff wiU be introduced : a Oeneral gets
some information about the movements or resources of the enemy l
the success of either will depend on his judging soundly and well
when he ought to act on the assumption that what he hears is true,
or when prudence bids him assume it to be false: if he waited for
absolute certainty, he would never act at all. In like manner all that
a Judge need look for is such a high degree of probability th^t a pru-
dent man, in any other transaction where the consequences of mis-
take were equally important, would act (mi the assumption that the
thing was true. This doctrine was thus laid down by PoUock, C.R
in R. V. Manning. ** If the conclusion to which you are conducted
be that there is that degree of certainty in the case that you would
act upon it in your own grave and important concerns, that is, the
* Norton, p. 87.
Digitized by VjOOQIC
SEC. 4.] RELEVANCY OF FACTS. 7
degree of certainty which \he law requires, and which will justify you
in returning a verdict of guilty."]
4. Whenever it is provided by this Act that the
^ „ Court may presume a fact, it may
ay presume, ^j^j^g j. regard such fact as proved, unless
and until it is disproved, or may call for proof of it.
Whenever it is directed by this Act that the
Court shall presume a fact, it shall
«shaU presume." regard such fact as proved, imless and
until it is disproved.
When one fact is declared by this Act to be con-
** Conclusive clusive proof of another, the Court
v^ov shall on proof of the one fact regard
the other as proved, and shall not allow evidence to
be given for the purpose of disproving it.
[The effect of this section is to do away with the distinction known
to English Law between presumptions of fact and presumptions of
. law, i)resumptions of fact being those natural inferences which our
experience of the world around us leads us to draw from certain
facts : presumptions of law being certain artificisd inferences which,
either from their recognized probability, or for some other cause, the
law directs to be drawn from certain mcts. The matter was further
complicated by the recognition in English Text Books of a third
class, mixed presumptions of law and fact, cases in which the pre-
sumption was partly natural and partly artificial. Under the present
Act these divisions are lost sight of, and all presumptions fall under
one or other of the three classes mentioned in the present section.
The first and by far the largest class includes all those natural
inferences which the " common course of natural events, human con-
duct and private and public business" suggest to us. Our experience
of the world, for instance, leads us to infer that a man, who is in pos-
session of stolen goods shortly after the, theft and can give no account of
them,either is the thief or has received them knowing them to be stolen :
our Imowledge of the regularity with which public business proceeds
leads us to infer that an official act has been regularly penormed :
our knowledge of human nature leads us to infer that a man, who
does not answera question, could not answer it in a manner favour-
able to himself. Such inferences iare formed, not hy virtue of any
law, but by the spontaneous operation of the reasoning faculty : all
that the law does for them is to recognize the propriety of their being
so drawn, if the Jud^e think fit. The Court may presume them, i. e,,
may either draw the inference at oilce, and call on the opposite party
to disprove it, or may refuse to draw the inference and call for
proof of it, independent of the facts hf which the inference was sug-
gested. Thus, in the case of a man found in possession of stolen
goods shortly after the theft and unable to account for his possession,
the Court may either presume the guilt of the accused and throw
Digitized by VjOOQIC
8 RELEVANCY OF FACTS. [CH. 11,
upon him the onus of proving his innocence ; or it may refuse to
presume the guilt and may throw upon the prosecution the burthen
of proving it.
Besides these natural presumptions there are several instances,
dealt with in Sections 86—88, and 90 in which the Court is, in like
manner, empowered to throw the burthen of proof on which party it
pleases, to presume a fact or to call for proof of it, as it thinks best.
The next class is of those cases in which the Court sMll presume a
fact ; here no option is left to the Court, but it is bound to take the
fact as proved until evidence is given to disprove it, and the party
interested in disproving it may produce such evidence if he can.
Presumptions of tliis sort are mostly provided either (1) where from
the nature of the case the truth of the thing presumed is in a high
degree probable, as, for instance, the genuineness of a document pur-
porting to be the Gazette of India or of a duly signed record of evi-
dence ; or else, (2) when it is the policv of the law to assume certain
things until they are disproved, as, for instance, that a document,
called for and not produced, was duly stamped, attested, and executed,
(Sec. 89,) or that circumstances bringing an offence within the ex-
ceptions to the Indian Penal Code do not exist. (Sec. 105.)
The third class is of those cases in which one fact is " conclusive
proof of another. An artificial probative effect is given by the law to
certain facts, and no evidence is allowed to be produced with a view
of combating that effect. These cases generally occur where it is
against the policy of Government or the interests of Society that a
matter should be further open to dispute. Thus Judgments of certain
Courts are conclusive proof of certain matters stated in them. Section
41 : birth during a vahd marriage is, with certain exceptions, conclu-
sive proof of legitimacy : and a notification in the Gazette of Jndid
of a cession of British Territory is conclusive proof of a valid cession
having taken place.
For instances in which the Court " may presume^^^ see Sections 86,
87, 88, 90 and 114 ; for instances in which it " shall presume," see
Sections 79 — 85 : for instances of " conclusive proof," see Sections 41,
112, and 113.]
CHAPTER II.
Of the relevancy of facts.
5. Evidence may be given in any suit or pro-
Evidence may ceeding of the existence or non exis-
!L'itu?anl'rd^ ^nce of evcry fact in issue and of
vant facta. such other facts as are hereinafter
declared to be relevant, and of no others. <i)
Explanation. — This section shall not enable any
person to give evidence of a fact which he is disen-
Digitized by VjOOQIC
SEC. 6.] RELEVANCY OF FACTS. 9
titled to prove by any provision of the law for the
time beinof in force relating to Civil Procedure.
lUmtratioTis.
{a.) A is tried for the murder of B by beating him with a club
with the intention of causing his death.
At A's trial the following facts are in issue —
A's beating B with the club :
A's causing B's death by such beating ;
A's intention to cause B's death.
(6.) A suitor does not bring with him, and have in readiness for
production at the first hearing of the case, a bond on which he relies.
This section does not enable him to produce the bond or prove its
contents at a subsequent stage of the proceedings, otherwise than in
accordance with the conditions prescribed by the Code of Civil
Procedure.
[ (1.) Each of the facts mentioned in Illustration (a) being facts in
issue, inasmuch as, taken together, they establish the liability of A to
be convicted of murder, (see Sec. 3,) evidence of them may be given.
The remaining sections of the Chapter deal with facts, which though
not * facts in issue' are so connected with or related to some fact in
issue, that the law allows evidence of them to be given for the
purpose of increasing or decreasing its probability ; such facts are
therefore called relevant.
" Hereinafter" in the first paragraph, must include not only this
Chapter 5—55, but Sections 145, 146, 148, 163, 155, 156, 157, 158.]
6. Facts which, though not in issue, are so con-
nected with a fact in issue as to form
Relevancy of part of the Same transaction, are rele-
'r^lt'l"^^^^^^ vant, whether they occurred at the
tion. same time and place or at different
times and places.lO
Illtistrations,
(a.) A is accused of the murder of B by beating him. Whatever
was said or done by A or B or the by .standers at the beating, or so
shortly before or after it as to form part of the transaction, is a
relevant fact.
(6.) A is accused of wa^ng war against the Queen by taking part
in an armed insurrection in which property is destroyed, troops are
attacked, and gaols are broken open. The occurrence of these facts is
relevant, as forming part of the general transaction, though A may
not have been present at all of them.
(c.) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the subject
out of which the libel arose, and forming part of the correspondence
in which it is contained, are relevant facts*, though they do not con-
tain the libel itself.
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10 RELEVANCY OF FACTS. [CH II,
(d.) The question is whether certain goods ordered from B were
delivered to A. The goods were delivered to several intermediate
persons successively. Each delivery is a relevant fact.
[ (1.) There are facts which are described in the Text Books as being
part of the '' res gestceJ' The expression 'form part of the same
transaction' is of course somewhat vague, and is intended to throw
on the Judge the task of deciding whether the facts to be proved and
the facts in issue are so closely and immediately connected with each
other as practically to constitute a single group, each of which must
be considered in order to understand the rest.
Contemporary statements are often, of course, " facts forming part
of the transactions" to which they relate ; and might with equal pro-
priety be shown to be relevant under this section, or Section 8, 9,
or 14. Thus in Lord George Gordon's Trial for treason, it became
necessary to inquire whether certain proceedings, in which a riotous
mob were headed by the accused, amounted to the offence ; and the
cries of the mob were admitted as evidence against him. So in
O'Connell's Trial, where the accused were charged with summoning
monster meetings for an illegal purpose, papers publicly sold at the
meetings and banners paraded were received in evidence of their
objects, though no evidence was given connecting the accused with
the sale or with the persons selling. — Tayl., § 387.
So again where the buyer bought of the sellers stating that he
bought for G. & Co., and giving B as a reference as to his (the buyer's)
trustworthiness ; and in a suit the question arose whether the buyer
bought on his own behalf or on account of G. and Co., the Court of
Exchequer held that a letter from the sellers to their Agent, directing
him to make inauiries of B concerning the buyer and stating that
they (the sellers) had sold the goods on account of G. and Co., was
admissible, as part of the " res gesUe" between the buyer and the
sellers, to prove that the sellers had sold on the credit of G. and Co.,
and not on that of the buyer. — Milne v. Leisler 31 X. J.^ Ex,^ 267.
Such a letter might be shown to be relevant, according to the present
Act, under this section or Section 8, 9, or 14, or under Section 21.
Sometimes acts may * form part of the same transaction' though they
occur at distant places or different times ; when, for instance, a man
committed three burglaries in one night, and stole a shirt in one place
and left it in another, evidence of all these burglaries was admitted,
on the ground that " of crimes so intermixed, the Court must hear
the detail."—^, v. Whorley, 2 Leach^ 985.
Illustration (a) shows that the admissibility of statements of by-
standers will depend, not, as is the general rule in English Law, on
the question whether the party, against whom the evidence is given,
was present when the statement was made : but on the question
whether the statement was made so shortly before or after the trans-
action as to form part of it. The mere fact of the accused not being
present would not be ground for its exclusion. Sometimes such
statements are the best possible evidence. Suppose, for instance,
that the question is whether A committed a murder at a particular
house and time : a number of men are sitting in a room, one of them,
B, looks out of the window, and says, *' there goes A ;" immediately
afterwards screams are heard, the men rush out, and find the murdered
Digitized by VjOOQIC
SEC. 7.] RELEVANCY OF FACTS. 11
person's corpse and the murderer fled. B's statement would be
relevant as part of the transaction. It would also be admissible
under Section 157 by way of corroborating B's evidence.]
7. Facts which are the occasion, cause, or effect,
immediate or otherwise, of relevant
Facts which are n i i» x * • t_* i.
occasion, cause, tacts, Or lactS 111 ISSUC, Or whlCh Con-
or effect of facta stitute the state of things under which
they happened, or which afforded an
opportunity for their occurrence or transaction, are
relevant.
Illustratio7is.
(a.) The question is, whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with
money in his possession, and that he showed it, or mentioned the
fact that he had it, to third persons, are relevant.
(6.) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place
where the murder was committed, are relevant facts.
(c.) The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to poison, and
habits of A, known to B, which afforded an opportunity for the
administration of poison, are relevant facts.
[Section 6 having dealt with facts admissible as forming part of the
transaction, under inquiry. Section 7 embraces a larger area, and,
leaving the transaction itself, extends to facts which have directly or
indirectly occasioned it, or which have been occasioned by it, or
which though they cannot be said to have occasioned it, gave an
opportunity for its occurrence or constituted the state of things under
which it occurred.
Illustration (a) is am instance of facts relevant as giving occasion
or opportunity ; fbj of facts constituting an effect : (cj of facts
constituting the state of things under which an alleged fact hap-
pened.
In the trial of Captain Donnellan for poisoning Sir Thcodosius
Boughton with distilled laurel water, it was proved that Sir Theo-
dosious was ill at the time of a trifling complaint for which he was
takiuff medicine ; that laurel leaves were to be had in the garden ;
that the accused frequently practised distillation in a room which he
kept locked up : that Sir Theodosius used to lock up the phials con-
taining his medicine in an inner room, and that, having on one occa-
sion forgotten to take it, he was recommended by Donnellan to leave
it in an outer room ; that Donnellan had an interest in Sir Thco-
dosius' death, and took opportunities of falsely representing his
health to be far worse than it really was. All these would be rele-
vant facts under this and the following section.— £e nth. Rat. Evid.,
vii, 19.]
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12 RELEVANCY OF FACTS. [CH. II,
8. Any fact is relevant which
ti^n*^dpre?i^8 shows OF coHstitutes a motive or pre-
o r subsequent paration for any fact in issue or rele-
vant fact.
The conduct of any party, or of any agent to any
party, to any suit or proceeding in reference to such
suit or proceeding, or in reference to any fact in
issue therein or relevant thereto, and the conduct of
any person an oflfence against whom is the subject
of any proceeding, is relevant, if such conduct influ-
ences or is influenced by any fact in issue or rele-
vant fact, and whether it was previous or subse-
quent thereto.<i>
Explanation 1. — The word " conduct" in this sec-
tion does not include statements, unless those state-
ments accompany and explain acts other than state-
ments : but this explanation is not to affect the rele-
vancy of statements under any other section of this
Act.(2)
Explanation 2. — When the conduct of any person
is relevant, any statement made to him or in his
presence and hearing, which affects such conduct, is
relevant. <3)
Illustrations.
(a.) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered
C, and that B had tried to extort money from A by threatening to
make his knowledge public, are relevant
(6.) A sues B upon a bond for the payment of money. B denies
the making of the bond.
The fact that, at the time when the bond was alleged to be made,
B required money for a particular purpose, is relevant.
(c.) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to
that which was administered to B, is relevant. •
(d.) The question is whether a certain document is the will of A.
The facts that, not long before the date of the alleged will, A made
inquiiy into matters to which the provisions of the alleged will re-
late, that he consulted vakils in reference to making the will, and
that he caused drafts of other wills to be prepared, of which he did
not approve, are relevant.
Digitized by VjOOQIC
SEC. 8.] RELEVANCY OF FACTS. 13
(<?.) A is accused of a crime.
The facts that, either before, or at the time of, or after the alleged
crime, A provided evidence which would tend to give to the facts of
the case an appearance favourable to himself, or that he destroyed or
concealed evidence, or prevented the presence or procured the absence
of persons who might have been witnesses, or suborned persons to
give false evidence respecting it, are relevant.
(/.) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence—* the
police are coming to look for the man who robbed B,'--and that im-
mediately afterwards A ran away, are relevant.
(g.) The question is, whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D said to
C in A's presence and hearing—* I advise you not to trust A, for he
owes B 10,000 rupees ' — and that A went away without makmg any
answer, are relevant tacts.
(k.). The question is, whether A committed a crime.
The fact that A absconded after receiving a letter warning him
that inquiry was being made for the criminal, and the contents of
the letter, are relevant.
(i.) A is accused of a crime.
The facts that, after the commission of the alleged crime, he ab-
sconded, or was in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal things which were or
might have been used in committing it, are relevant.
(j.) The question is, whether A was ravished.
The facts that, shortlv after the alleged rape, she made a complaint
relating to the crime, the circumstances under which and the terms
in which the complaint was made, are relevant.
The fact that, ^thout making a complaint, she said that she had
been ravished is not relevant as conduct unaer this section, though
it may be relevant
as a dying declaration under section thirty-two, (one), or
as corroborative evidence under section one hundred and fifty-
seven.
(k.) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint
relating to the offence, the circumstances under which, and the terms
in which, the complaint was made, are relevant.
The fact that he said he had been robbed without making any com-
plaint is not relevant as conduct under this section, though it may be
relevant
as a dying declaration under section thirty-two, clause (one), or
as corroborative evidence under section one hundred ant fifty-
seven.
[ (1) This section is an amplification of the preceding one. When
one is considering the cause or occasion of a fact, or the state of
things under which it happened, nothing can be more material than
Digitized by VjOOQIC
14 RELEVANCY OF FACTS. [CH. Jl,
to know whether any person had an interest in its hapi)ening, or took
any measures calculated to bring it about. Thus motive and prepa-
ration become of the utmost importance. If A is found murdered,
the fact that B had a strong motive for wishing A dead is, so far
as it goes, a piece of evidence against B. So if A is poisoned witli
arsenic, the fact that B, shortly before, procured arsenic, or made
arrangements by which he would have access to A's food, points to
B being the poisoner.
Of the Illustrations, (a) and (b) show motive ; (c) and (d) prepara-
tion ; (e) and (i) show conduct of a party to the proceeding in reference
thereto ; (f), {g) and (A) are specimens of statements made to or in the
hearing of a person, whose conduct is relevant, influencing such con-
duct; (j) and (k) are specimens of statements accompanying and
explaining the conduct of a person an offence against whom is being;
inquired into. The statement becomes relevant under this section as
accompanying and explaining the conduct of the party in making a
complaint. By English Law the details of the statement in such cases
can be elicited only in cross-examination. — Tayl.y § 519. This restric-
tion will not apply to proceedings regulated by the present Act.
(2) Express provision is made for statements of various kinds ;
under Section 10, statements by conspirators ; Section 14, Illustrations
(^)» (^)> (^)» statements showing state of mind or body; Sections 17 — 31,
Admissions ; Sections 32—38, various statements by deceased persons
and others; former statements of witnesses, Sections 155 and 157. The
present section admits statements only so far as they accompany and
explain acts. Thus in (/) if a woman goes and makes a complaint to
her parents or other person of having been raped, the fact of such a
complaint having been made is relevant imder this section, and so is
what she said in so complaining. But her mere statement of having
been ravished, apart from a complaint, would, so far as the present
section is concerned, be inadmissible, though it might be got in under
other provisions of the Act.
(3) The provision contained in Explanation 2 lets in an important
class of statements, those, namely, made to or in the presence of a party,
whose conduct is in question, and which can be shown in any way to
affect such conduct. The Illustrations given in ffj, (g) and (h) show how
important such statements may be in throwing light upon a persoii's
motives, intention, good faith, <fec. Care must, however, be taken not
to apply the doctrine *' He who keeps silence, consents" too freely,
or to infer that because a man does not choose, on a particular occa-
sion, to deny the truth of a thing, he is to be taken as impliedly
admitting it. A statement may be a mere impertinence and best
rebuked oy silence ; and especially when the observations are not
addressed to a man himself, but are merely made in his jjresence, he
is under no obligation to take any notice of them. This is still more
the case when the statement is made not by a person interested in
the proceedings but by a mere stranger. In such case they may natu-
rally be left uncontradicted and a Judge would be acting very rashly
who inferred acquiescence from silence. Again statements may be
made in a man's presence which from the circumstances of the case
he has no opportunity of replying to, and as to which, therefore, no
inference can be drawn from his silence, e. g,, depositions in Court.
In the same way statements to a man by letter may often be shown
Digitized by VjOOQIC
SEC. 9.] RELEVANCY OF FACTS. 15
to fe,flfect his conduct and may be most useful in explaining it : but
here again great caution is necessary in drawing any inference from
his silence.
** What is said to a man before his face, observed Lord Tenterden in
Fairlie v. Denton^ he is in some degree called on to contradict, if he doea
not acquiesce in it ; but the not answering a letter is quite different ; and
it is too much to say, that a man, by omitting to answer a letter at
all events, admits the truth of the statements that letter contains." —
Ta7jl., §735.
But the statements whether oral or written must be shown to affect
the conduct of the person to whom they are made, and therefore
mere statements to a person which cannot be shown to be in any way
connected with or to bear upon his conduct would be inadmissible.
This point was much discussed in the well-known case of Doe d.
Tatham v. Wright, 7 A, and J5^., 400, where the question was as to the
sanity of a testator at the time of making his will. " In order to
determine that question," said Tindal, C. J., " I conceive all that was
said, written or done by the Testator himself at any time during such
period was the most direct and the best evidence to ascertain the
state of his understanding ; and that the next in degree, because
intimately connected with it, would be all that was said to him,
written to him, and done to him during the same period by his
friends and others who had access to him, provided always that what
was so saidy written or done to him by others is shown to have come to
his actual knowledge ; but I consider this condition to be indispen-
sable as to the admissibility of this second class of evidence ; for as
to what was said by others, but not heard by the party whose under-
standing is the subject-matter of inquiry, or written by others but
which never reached him, or don^ by others but never known by him
to have been done, it appears to me that such speaking or such writing
or such acting can amount to no more than an expression of the
opinion of the speaker, or writer or actor, and that such . opinion not
having been given .on oath, and not being subject to cross-examina-
tion as to the grounds on which it was ori^nally formed or continued,
cannot on that account be deemed admissible in evidence."]
9. Facts necessary to explain or introduce a fact
in issue or relevant fact, or which
t Jexpk'inr^lZ support or rebut an inference suggested
troduce relevant by a fact in issue Or r^clevaut fact,
or which establish the identity of any
thing or person whose identity is relevant, or fix the
time or place at which any fact in issue or relevant
fact happened, or which show the relation of parties
by whom any such fact was transacted, or relevant
in so far as they are necessary for that purpose.
Illustrations,
(a.) The question is whether a given document is the will of A.
The state of A's property and of his family at the date of the
alleged will may be relevant facts.
Digitized by VjOOQIC
16 RELEVANCY OF FACTS. [CH. IT,
(b.) A sues B for a libel imputing disgraceful conduct to A. B
affirms tliat the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel
was puolished may be relevant facts as introductory to the facts in
issue.
The particulars of a dispute between A and B about a matter un-
connected with the alleged libel are irrelevant, though the fact that
there was a dispute may be relevant if it affected the relations be-
tween A and B.
(c.) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded
from his house, is relevant, under section eight, as conduct subsequent
to and affected by facts in issue.
The fact that, at the time when he left home, he had sudden and
urgent business at the place to which he went, is relevant as tending
to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant, ex-
cept in so far as they are necessary to show that the business was
sudden and urgent.
(d) A sues B for inducing C to break a contract of service made
by him with A. C, on leaving A's service, says to A—' I am leaving
you because B has made me a better offer.* This statement is a
relevant fact as explanatory of C's conduct, which is relevant as a
fact in issue.
{€,) A, accused of theft, is seen to give the stolen property to B,
who is seen to give it to A's wife. B says, as he delivers it—* A says
you are to hide this.' B's statement is relevant as explanatory of a
fact which is part of the transaction.
(/.) A is tried for a riot and is proved to have marched at the
hfead of a mob. The cries of the mob are relevant as explanatory of
the nature of the transaction.
[Having, in the previous sections, disposed of facts which are rele-
vant as, having ifL one way or other, caused a fact relevant or in issue,
we now come to facts which are relevant either (1) as explaining or
introducing a fact relevant or in issue, of which an Illustration is given
in (a), (6), (^0, W and (/) or, (2) as supporting or rebutting an inference
suggested by any such fact, as in Illustration (c) where evidence may
be given of facts to rebut the inference suggested by A's sudden
departure : or (3) to establish the identity of any person, or to fix the
time or place at which anything happened, when these points are
relevant or issue : or (4) to show the relation of the parties. As
Sections 7 and 8 provided for facts causative of a fact relevant or in
issue, this section may be said generally to provide for facts explana-
tory of any such fact It wiD be observed if a statement can be
shown to be thus explanatory, it is admissible, perfectly irrespective
of whether the person against whom it is given heard it or was
present when it was made. Thus in Illustrationa (d), (e) and (/) the
person affected may have been perfectly unconscious of the state-
ment : none the less is it admissible as exnlanatory of a fact in issue
or relevan t. It is 'presumed' says Mr. Norton* as to Illu strations
" *Nor.,p. 112. ~~^
Digitized by VjQOQlC
SEC. 10.] RELEVANCY OF FACTS. 17
{d) and (c) the statements made by C in the one case and D in the
other are only to be receivable as evidence that such statements were
made, as declarations accompanying an act, not of the truth of them
as affecting B or A respectively. Without some proof of authority
given by the parties to be affected to those making the statements, it
is clear that a very dangerous innovation is introduced, whereby
persons may suffer in life, person or property, by statements put into
their mouths from behind their backs, a principle which the Law of
^Evidence htis hitherto eschewed.'' This, it is submitted, gives a
narrower scope to the two Illustrations in question, tiian can have been
intended. Their effect is, confessedly, to make statements, made
behind a person's back relevant, provided that such statements are
explanatory of a fact which is itself in issue or rdevant. Whether
this is dangerous innovation is a matter of opinion : the framers of
the Act apparently thought otherwise. They may have considered
that, thougn such statements might weigh heavily against a man on
some occasions, they might weigh strongly in his favor on others, and
that, if evidence of a fact is to be ^ven at all, it is desirable that
what was said about it at the time of its occurrence should be proved
as well as the other parts of the transaction.
In a case in which the question was whether A had stolen some
chaff from B, B gave evidence that the chaff found at A's house was
similar to that lost by B, and that in both there was linseed. A was
allowed to give evidence to explain the presence of linseed in the
chaff found with him and so rebut the inference suggested by its 'pre-
sence.— Wright v. Wilcoije, 19 Z. J,, C. P., 333.]
10. Where there is reasonable ground to believe
Things said or *^^^ ^^^ ^^ ^^^^ perSOnS haVO con-
done by conspira- spired together to commit an offence
to"" common Te! ^T an actionable wrong, anything
sign. said, done or written by any one of
such persons in reference to their common intention,
after the time when such intention was first enter-
tained by any one of them, is a relevant fact as
against each of the persons believed to be so con-
spiring, as well for the purpose of proving the exist-
ence of the conspiracy as for the purpose of showing
that any such person was a party to it.
Illustration.
(a.) Reasonable ground exists for believing that A has joined in a
conspiracy to wage war against the Queen.
The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Calcutta for a like object, D per-
suaded persons to join the conspiracy in Bombay, E published writ-
mgs advocating the object in view at Agra, and F transmitted from
Delhi to G at Cabul the money which C had collected at Calcutta,
and the contents of a letter written by H giving an account of the
Digitized by VjOOQIC
18 RELEVANCY OF FACTS. [CH. II,
conspiracy, are ejtch relevant, both to prove the existence of the con-
spiracy, and to prove A's complicity in it, although he may have
been ignorant of all of them, and although the persons by whom they
were done were strangers to him, and although they may have taken
place before he joined the conspiracy or after he left it.
[The provisions of this section are considerably wider than the
English Law. Not only are statements made by one conspirator
infurUverarice of the common design relevant as agamst the other con-
spirators, but anything said, done or written by any conspirator tn
reference to the common design is relevant against any other person
who is reasonably believed to have joined in the conspiracy^ altnough
such thing may have been said, written or done before he joined the
conspiracy^ or after he left it. A mere narrative of the plot would
be admissible : and so would papers, written by one of the conspi-
rators about the plot, although such papers may not have been in
existence when the accused was taken into custody. In England only
statements of conspirators in furiherwme of the common design can
be proved, and important evidence is often thus shut out.
For instance on the trial of A and B for conspiring to cause
imported goods to be carried away without payment of duty, with
intent to defraud .the revenue, it was proposed to use as evidence
against B, the counterfoil of A's cheque-book, which purported to
show that part of the duty, of which the customs had been defrauded,
had been paid to B. This was excluded as not being an act done in
pursuance of the conspiracy, but a mere statement of the result
of the conspiracy^ — R, v. Blake, 6 Q. jB., 126. It would be clearly
admissible under the present section. The statement, however,
must refer specifically to the common design, and not merely to the
^ subjects with which the design may be remotely connected. Thus
^ in the case of Algernon Sidney, a treatise containing speculative
republican doctrines, which not only was unpublished and uncon-
nected with the treasonable practices of which he was accused,
but which appeared to have been composed several years before the
trial, was under the auspices of Judge Jefferies, admitted in evidence.—
TayL, § 533. This would not be admissible under the present section.
The section extends also to persons who have conspired to commit
an actionable wrong, and therefore the statements of one co-trespasser,
if there is a reasonable ^ound for believing a conspiracy to have
existed, ate admissible against the other co-trespassers. Thus in an
action for false imprisonment, the declarations of a co-defendant
shewing personal malice, have been admitted in the English Courts,
as evidence against the other defendants, though made in their
absence, and several weeks after the act complained of. — Tayly § 534.
It is to be observed that in order to bring the section into
operation there must be, in the first place, reasonable ground to
believe in the existence of the conspiracy : that being shown, any of
the facts mentioned in the section are relevant, as well to prove the
existence of the conspiracy, as to imphcate each of the conspirators.
If there was primd facie evidence that two or more persons were
acting in concert to a common end, or if, supposing concert not to be
direcuy proved, if their acts so dove-tailed into and supplemented
each other as to produce a particular result not likely to be produced
without a previous design, this would, it is submitted, be reasonable
Digitized by VjOOQIC
SEC. 11.] RELEVANCY OF FACTS. 19
ground for believing in the existence of a conspiracy witliin the
meaning of the section.
It is often, of course, necessary to prove the acts of one person in
order to explain the conduct or intention of another with whom he is
acting jointly. Thus where A and B went together to a shop and A
tendered a counterfeit coin, evidence of B having a number of
counterfeit coins, wrapped up in a paper, on her person was admitted
to show a guilty knowledge on a part of A, though no counterfeit
had been found on A. — R, v. Skerritt^ 2 (7. and P. 427.]
otherwise reie- H. Facts not otherwise relevant
vantbecomerele- r^^e relevant —
vant.
(1) if they are inconsistent with any fact in issue
or relevant fact ;
(2) if by themselves or in connection with other
facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or
improbable.
Illustrations.
(a,) The question is, whether A committed a crime at Calcutta on
a certain 'day.
The fact that on that day A was at Lahore, is relevant.
The fact that near the time when the crime was committed, A was
at a distance from the place where it was committed, which would
render it highly improbable, though not impossible, that he commit-
ted it, is relevant.
(6.) The question is, whether A committed a crime.
The circumstances are such that the crime must have been com-
mitted either by A, B, C or D. Every fact which shows that the
crime could have been committed by no one else and that it was not
committed by either B, C or D, is relevant.
[This section is of importance principally to the party whose object
it is to disprove some fact which is asserted by the opposite side.
There may be facts which have no connection with an alleged
circumstance, except that they show it to be impossible or so highly
improbable as to justify the inference that it never occurred. Of
this an alibi is the most familiar instance. There may, on the other
hand, be facts which though not forming part of the transaction, yet
make the fact of its having occurred a matter of certainty. A warder,
for instance, is locked up with 5 prisoners in a jail. He is found
murdered. The facts that there was no one else in the jail, that no
one could have got in, that 3 of the five prisoners were diained up in
cells, and a 4th lying paralyzed in bed, are relevant as proving that
the murder was committed by the 5th prisoner. Such facts might,
with equal propriety, be proved under Section 7, as constituting the
state of things under wmch a fact^ in issue or relevant, occurred, or
as having afforded an occasion for its occurrence.
Digitized by VjOOQIC
20 BELEVANCY OF FACTS. [CH. II,
Care must be taken not to give this section an improperly wide
scope by a too liberal interpretation of the words " inconsistent" and
" highly probable or improoable." Otherwise the section might seem
to contain in itself and to supersede all the other provisions of the Act
as to relevancy. The Illustrations show that the inconsistency refer-
red to means a physical impossibility of the co-existence of two facts,
as that a man snould be in two places at the same time or within an
interval of time too short to allow of his transit by any known means
of locomotion from one to the other : by " highly improbable" is
meant something, which, though not absolutely impossible, is next
door to it. A man might be at such a distance from the scene of an
oflfence as to make it, though not physically impossible, yet highly
improbable that he could have been present at its occurrence : the
fact that he was at such a distance would be a material consideration
in forming an opinion as to whether he committed it, and would be
relevant. Under this section evidence might be given of the sort of
inconsistencies, which are so frequently the means of exposing a false
story. Beutham instances the case of the Gomte de Moraitgies, where
the question was whether a sum of money 300,000 francs had been
received by the Count : this money was alleged to have been carried,
in a particular manner and within a specified time, to his house. Evi-
dence of facts showing this to be physically impossible was admitted,
and would have been relevant under this section. — Benth. Rat. Ev.y
vii, 62n.]
In suit8 for da. \^' ^^ ^uits in which damages are
mages, facts claimed, any fact which will enable
SVJ'Tetei! th® Court to determine the amount of
mine amount are damages which ought to be awarded
relevant. j^ relevant.
[ As to character as affecting damages, see Section 55.
In actions for defamation, other libellous expressions by the
defendant, whether used before or after the commencement of the suit,
are admissible to prove malice and so enhance damages. On the
other hand, evidence of circumstances, justifying the defendant's
conduct, and sbowinff he acted bond jfide and -without malicious
intention, would be relevant.
So also, in mitigation of damages, the defendant may show facta
tending to disprove malice, as e.g., that rumors of the fact asserted
were prevalent in the neighbourhood, Richards v. Richards, 2 M. <t
R.y 557, or that the statement was copied from another paper. —
Saunders v. MillSy 6 Bing.y 213.
Doubts have been expressed as to whether, according to English
Law, the defendant may, in such cases, show, in mitigation of damages,
that the plaintiff, at the time of the publication of the libel, labored
under a general suspicion of having committed the act imputed to
him. Mr. Taylor discusses the question and points out in favor of
the admissibility of such evidence that when a man demands
damages for injury done to his general reputation, he ought to be
prepared to show that he has a reputation to be injured, and there-
fore to rebut evidence of his general bad character. The weight of
Digitized by VjOOQIC
SEC. 12—13.] RELEVANCY OF FACTS. 21
English authorities is in favor of the admissibility of the evidence,
and under the present section and section fifty-five, it would, it is
apprehended, be admissible.
So also in actions for assault, the provocation offered by the
plaintiff would be relevant : in the case of actions against Rjolway
Companies for iiyuries received, the position and circumstances and
earnings of the plaintiff, the precautions taken by the Company, and
the contributory negligence, if any, of the plaintiff : and in suits for
breach of contract all facts showing the amount of loss occasioned to
the plaintiff by the breach. See Contract Act, 1872, Section 73.]
Facts relevant 13. Where the question is as to
^"^stomrsfnque:! t^e existence of any right or custom,
tion. the following facts are relevant —
(a.) Any transaction by which the right or cus-
tom in question was created, claimed, modified,
recognized, asserted or denied, or which was incon-
sistent with its existence.
(6.) Particular instances in Avhich the right or
custom was claimed, recognized, or exercised, or in
which its exercise was disputed, asserted or departed
from.
Illustration,
The 'question is, whether A has a right to a fishery. A deed confer-
ring the fishery on A's ancestors, a mortgage of the fishery by A's
father, a subsequent grant of the fishery by A's father, irreconcilable
with the mortgage, particular instances in which A's father exercised
the right, or in which the exercise of the right was stopped by A's
neighbours, are relevant facts.
[There will often be a question as to whether the right or custom,
shown to have been exercised on some particular occasion is identical
^vith the right or custom which has to be proved. The customs of
one manor are not, in England, admissible to prove the customs of
another. Marquis of Anglesea v. Lord Hatherton, 10 M. dc TT., 255,
unless some connection can be shown between them, as, for instance,
that the manors were originally held under one tenure. So also
where evidence of a right exercised in a particular locality, is given,
it need not be confined to the precise spot, as to which the inquiry
is, so long as there is such a common character between the places,
as to suggest a reasonable inference that the same state of things
existed in each. In Jones v. Williams, 2M.dc TT., 326, the question
was as to a right of ownership, as shown by certain acts of enioyment,
and Baron Parke in deciding that evidence of such acts should be
admitted, said, " I am also of opinion that this case ought to go
down to a new trial, because I think the evidence offered of acts m
another part of one continuous hed^e, and in the whole bed of the river,
adjoining the plaintiff's land, was aamissible in evidence, on the ground
that they are such acts as might reasonably lead to the inference that
Digitized by VjOOQIC
22 RELEVANCY OF FACTS. [CH. II,
the entire hedge and bed of the river, and, consequently, the part in
dispute, belonged to the plaintiff. Ownership may be proved by
proof of possession, and that can be shown by acts of e]\|oyment of
the land itself ; but it is impossible, in the nature of things, to con-
fine the evidence to the very precise spot on which the alleged tres-
pass may have been committed ; evicSnice may be given of acts done
on other parts, provided there is such a common character of locality
between those parts and the spot in question, as would raise a reason-
able inference in the minds of the jury that the place in dispute
belonged to the plaintiff if tJie other parts did. In ordinary cases, to
prove his title to a close, the claimant may give in evidence acts of
ownership in any part of the same enclosure j for the ownership of
one part causes a reasonable inference that the other belongs to the
same person ; though it by no means follows as a necessarv conse-
quence ; for different persons may have balks of land in the same
enclosure : but this is a fact to be submitted to the juiy. So, I
apprehend, the same rule is applicable to a wood wnicn is not
enclosed by any fence : if you prove the cutting of timber in one
part, I take that to be evidence to go to a jury to prove a right in
the whole wood, although there be no fence, or distinct boundary
surrounding the whole : and the case of Stanley v. White, 14 East,
332, I conceive, is to be explained on this principle : there was a
continuous belt of trees, and acts of ownership on one part were held
to be admissible to prove that the plaintiff was the owner of another
part, on which the trespass was committed. So I should apply the
same reasoning to a continuous hedge ; though no doubt the defend-
ant might rebut the inference that the whole belonged to the same
person, by showing acts of ownership on his part along the same
fence. It has been said in the course of the argument, that the
defendant Iwd no interest to dispute the acts of ownership not opposite
to his own land ; but the ground on which such acts are admissible is
not the acquiescence of any party : they are admissible of themselves^
proprio vigor e, for they tend to prove that he who does them is the
owner of the soil ; though if they are done in the absence of all persons
interested to dispute them, they are of less weight. That observation
applies only to the effect of the evidence. Applying that reasoning
to the present case, surely the plaintiff^ who claims the whole bed of
the river, is entitled to show the taking of stones, not only on the
spot in question, but all along the bed of the river, which he claims
as being his property : and he has a right to have that submitted to
the jury. The same observation applies to the fence and the banks of
the river. What weight the jury may^attach to it is another question."]
14. Facts showing the existence of any state of
Facts showing mind— such as intention, knowledge/D
existence of state good faith, negligence, rashness, iU-
t^or bJdiiy will or good-will towards any particu-
fceHng. lar person, or showing the existence
of any state of body or bodily feeling — are relevant,
when the existence of any such state of mind or
body or bodily feeling, is in issue or relevant.
Digitized by VjOOQIC
SEC. 14.] RELEVANCY OF FACTS. 23
Explanation. — A fact relevant as showing the
existence of a relevant state of mind must show that
it exists, not generally, but in reference to the par-
ticular matter in question.<2)
Illustrations.
(a.) A is accused of receiving stolen goods knowing them to be
stolen. It is proved that he was in possession of a particular stolen
article.
The fact that at the same time he was in possession of many other
stolen articles is relevant, as tending to show that he knew each and
all of the articles of which he was in possession to be stolen.
(6.) A is accused of fraudulently delivering to another person a
piece of counterfeit coin which, at the time when he delivered it, he
knew to be counterfeit.
The fact that, at the time of its delivery, A was possessed of a
number of other pieces of counterfeit coin, is relevant.
(c.) A sues B for damage done by a dog of B's which B knew to
be ferocious.
The facts that the dog had previously bitten X, Y and Z, and that
they had made complaints to B, are relevant.
{d,) The question is whether A, the acceptor of a bill of exchange,
knew that the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same manner
before they could have been transmitted to him b^ the payee if the
payee had been a real person, is relevant, as showing that A knew
that the payee was a fictitious person.
(e.) A is accused of defaming Bby publishing an imputation
intended to harm the reputation oi B.
The fact of previous publications by A respecting B, showing ill-
will on the part of A towards B, is relevant, as proving A's intention
to harm B's reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B,
and that A repeated the matter complained of as he heard it, are rele-
vant, as showmg that A did not intend to harm the reputation of B.
(/.) A is sued bv B for fraudulently representing to B that C was
solvent, whereby 6, being induced to trust C, who was insolvent,
suffered loss.
The fact that, at the time when A represented C to be solvent^ C
was supposed to be solvent by his neighbours and by persons dealmg
with hm, is relevant, as showing that A made the representation in
good faith.
{g,) A is sued by B for the price of work done by B, upon a house
of which A is owner, by the order of C, a contractor.
A's defence is that B's contract was with C.
The fact that A paid C for the work in question is releva'ht, as
pro\ing that A did, in good faith, make over to C the management
Digitized by VjOOQIC
24 RELEVANCY OF FACTS. [CH. II,
of the work in question, so that C was in a position to contract with
B on C's own account, and not as agent for A.
(h.) A is accused of the dishonest misappropriation of property
wnich he had found, and the question is whether, when he appro-
priated it, he believed in good faith that the real owner could not be
found.
The fact that public notice of the loss of the property had been
given in the place where A was, is relevant, as showing that A did
not in good faith believe that the real owner of the property could
not be found.
The fact that A knew, or had reason to believe, that the notice was
given fraudulently by C, who had heard of the loss of the property
and wished to set up a false claim to it, is relevant, as showing that
the fact that A knew of the notice did not disprove A's good faith.
(*.) A is charged with shooting at B with intent to kill him. In
order to show A^ intent, the fact of A's having previously shot at B
may be proved.
(J,) A is charged with sending threatening letters to B. Threat-
emng letters previously sent by A to B may be proved, as showing
the intention of the letters.
(k,) The question is, whether A has been guilty of cruelty towards
B, nis wife.
Expressions of their feeling towards each other shortly before or
after the alleged cruelty, are relevant facts.
{L) The question is, whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms, are
relevant facts.
(m,) The question is, what was the state of A's health at the time
when an assurance on his life was effected.
Statements made by A as to the state of his health at or near the
time in question, are relevant facts.
(n,) A sues B for negligence in providing him with a carriage for
hire not reasonably fit for use, whereby A was injured.
The fact that B's attention was drawn on -other occasions to the
defect of that particular carriage, is relevant.
The fact that B was habitually negligent about the carriages which
he let to hire, is irrelevant.
(o.) A is tried for the murder of B by intentionally shooting him
dead.
The fact that A, on other occasions, shot at B is relevant, as show-
ing his intention to shoot B.
The fact that A was in the habit of shooting at people with intent
to murder them, is irrelevant.
(p,) A is tried for a crime.
The fact that he said something indicating an intention to commit
that particular crime, is relevant.
The fact that he said something indicating a general disposition to
commit crimes of that class, is irrelevant.
Digitized by VjOOQIC
SEC 14.] RELEVANCY OF FACTS. 25
[ We now come to evidence as to states of mind or body, with
wnich this and the following section e^ressly deal, the present
section providing generally for the subject, and section fifteen
providing for the special mode of proving a thing to have been
intentional by showing that it formed one of a series of similar
occurrences.
States of mind, knowledge, intention, <&c., are among the most
important topics with which judicial inquiries are concerned. In
criminal cases they are invariably a main consideration ; and in civil
caaea they are often highly material, as, for instance, where there la a
question of fraud, mahcious intention in libels, &c.
The simplest and most direct mode of proving a state of mind would
be, of course, the evidence of the person nimself stating in Court what
his mental reelings, at a particular time, were. Tms evidence is,
however, for obvious reasons, in many cases untrustworthy^ and in
other cases is not to be had, and the state of mind must be mferred
from its outward manifestations ; these may be either words or deeds.
Whether a man says, " I was in a perfect fury this morning," or
whether he knocks down Ms servants and smashes his furniture,
there is evidence in either case from which his state of mind may be
inf enc^ The first four Illustrations give instances of the mode in
which knowledge may be proved : Illustrations («) to QJ deal with
various intentions, malice, fraud, murder, &c. ; (k) shows how person's
expressions of feeling towards each other at about any particular time
may be used to show what those feelings were : and (Q and (m) show
the same thing in regard to states of body. It will be observed that
this section gets rid of all technicalities as to the class of cases in
which evidence, given under it, is admissible, or the time within
which the fact, given as evidence of mental or bodily condition, must
have occurred : the only point for the Court to consider, in deciding
on the admissibility of evidence under its provisions^ is whether the
fact can be said to show the existence of the state of mind or body
under investigation.
The acts of one person may sometimes serve to indicate another
person's state of mind. Thus in a suit where the question was whether
the def endimt knew at the time of a contract, made with the plaintifiT,
that the plaintiff was insane, evidence of the plaintiff's conduct ou
various occasions before and after the contract was held admissible
for the purpose of showing that the plaintiff's malady was of such a
nature as would make itself apparent to the defendant at the time of
the contract — Beavan v. McDonnell, 23 L, J,, Ex,, 336.
Such evidence would be relevant under the present section for the
purpose of showing t^at the defendant was not acting in good faith.
(2) Illustration^ {n\ (o) and {p) have ref erende to the Explanation.
The meaning is that the state of mind to be proved must be, not
merely a general tendency or disposition towards conduct ef a similar
description to that in question, but a condition of thou^t and i^V
ing having distinct, immediate reference to the matter wmch is under
inquiry. The fact that a man is generally dishonest, generally mali-
cious, generally negligent or criminal in his proceedings does not bear
with sufficient directness on his45onduct on any particular occasion
or as to any particular matter to make it safe to take it as a guide in
Digitized by VjOOQIC
2G RELEVANCY OF FACTS. [CH 11,
interpreting his conduct : what is wanted is a fact which will throw
light on his motives and state of mind with immediate reference to
that particular occasion or matter. Illustrations (a) and (6) make
this clear. A man is accused of receiving stolen goods with guilty
knowledge : if he is merely shown to be generall^r dishonest, the pro-
bability of his having been dishonest in this particular transaction is
perhaps increased, but only in a vague and indefinite way : but if, at
the time, he is found in possession of a number of other stolen
articles, this fact throws a distinct light on his knowledge and inten-
tions as to the articles of which he is found in possession ; it would
be dangerous to infer that because a man was generally dishonest, lie
was dishonest in any single case ; but it is not dangerous to infer that
a man, who is found in possession of 50 articles stolen from different
people, came by each and all in a dishonest manner.]
15. When there is a question whether an act
was accidental or intentional the fact
Facts bearing that such act formed part of a series
on question wne- n • • i • ^ r
theract was ac- of Similar occurrciices, m each of
cidentalorinten- which tllC pCl'SOn doiUcr the act WaS
tionaL -I • 1 i °
concerned, is relevant.
Illfistrations,
(a.) A is accused of burning down his house in order to obtain
money for which it is insured.
The facts that A lived in several houses successively, each of which
he insured, in each of which a fire occurred, and after each of which
fires A received payment froni a different Insurance office, are rele-
vant, as tending to show that the fires were not accidental.
{b.) A is employed to receive money from the debtors of B. It is
A's duty to make entries in a book showing the amounts received by
him. He makes an entry showing that on a particular occasion he
received less than he really did receive.
The question is, whether this false entry was accidental or inten-
tional.
The facts that other entries made by A in the same book are false,
and that the false entry is in each case in favour of A, are relevant.
(c.) A is accused of fraudulently delivering to B a counterfeit
rupee.
The question is, whether the delivery of the rupee was accidental.
The facts that soon before or soon after the delivery to B, A deli-
vered counterfeit rupees to C^ D and E are relevant, as showing that
the delivery to A was not accidental.
[This section is an enlargement of the English Law, which, though
it admits evidence of this Kind in some cases, e. ^., counterfeiting or
forgery, or uttering counterfeit coin, excludes it in others. Thus, ** in
an indictment against a thief or receiver, the fact that the person has
at various times received and pledged other property stolen from
different persons cannot be given in evidence : though if it can be
shown that the chattels so received and pledged have been stolen
Digitized. by VjOOQIC
SEC. 15 — 16.] RELEVANCY OF FACTS. 27
from the prosecutor, the evidence will be admissible as raising some
presumption of guilty knowledge with respect to the articles mentioned
in the indictment."— ^ay/., § 323. Such evidence would be admissible
under the present section if it could be made to show a series oiE
similar occurrences, and so that the prisoner had not come accidentally
into the possession of the stolen goods.
Another restriction of English Law is that, though on an indict-
ment for uttering a forged note, other utterings of forged notes may
be proved, evidence cannot be given as to what the prisoner, said or
did at the time with respect to such other utterings.— Tay/., § 322.
Under the present law, as the other utterings are relevant facts, state-
ments accompanying and explaining such facts would be relevant
under Section 8, or Section 9.
Evidence of a fact forming one of series has, however, been admitted
in England in cases in which it goes far to disprove accident. Thus
where four indictments were preferred against a woman on a change
of having poisoned her husband and two of her sons and of having
attempted to poison a third, on the trial of the first of the indict-
ments only, evidence that arsenic had been taken by the three sons
shortly after their father's death, that all parties when ill exhibited
the same symptoms, and that the woman lived in the house a^d
prepared the meals, was admitted, though the indictment dealt with
the husband's death only, for the purpose of showing that his death
waa caused by taking arsenic and was not accidental.— iif. v. Geering,
18 £. J., M. C, 215.
16. When there is a question Avhether a particu-
^ . , ^ lar act was done, the existence of any
Existence of n i • ^' i i * i
course of busi- coursc 01 Dusincss, according to which
v^t ^^^^ '^^^* ^^ naturally would have been done, is
a relevant fact. (i>
Illustratio7is.
(a.) The question is, whether a particular letter ^as despatched.
The facts that it was the ordinary course of business for all letters
put in a certain place to be carried to the post, and that that parti-
cular letter was put in that place, are relevant.(2)
(6.) The question is, whether a particular letter reached A. The
facts that it was posted in due course, and was not returned through
the Dead Letter Office, are relevant.
[ (1.) The existence of any such course of business should be clearly
made out. An attempt is often made to give evidence of facts which
form no part of the transaction in question and have no real connec-
tion with it, on the ground that they give rise to an inference that
what happened in the one case would probably happen in the other.
Thus in a suit between a landlord and tenant, when the issue was
whether the rent was payable quarterly or half-yearly, evidence of
the mode in which otner tenants paid their rent would be inadmis-
sible, unless a regular course of business, according to which all
tenants invariably paid their rent, could be shown ; so when the
point in issue was whether the beer supplied by a brewer was good,
Digitized by VjOOQIC
^8 ADMISSIONS. [CH. II,
evidence as to the goodness or badness of beer snpplied by the same
brewer to ol^er customers would be inadmissible, because it does
not necessarily follow that all customers got the same quality of beer ;
but the case, it is apprehended, would be different, if it be snown that
beer of the same brewing had been supplied under the same circum-
stances, to other customers, so as to establisb a connection between
the two deliveries. — HoUomb v. Hewson, 2 Camp., 391.
In the same way when the question was as to the terms of a con-
tract for certain guano, evidence was offered as to the terms of other
contracts for guano made by the same defendant, and rejected on
the ground that there was no reason, because a man had done a thin^
once, that he should do it again, and that no connection between
the two contracts had been made out. But the case would obviously
be different if it could be shown that according to a regular course of
trade all guano contracts were invariably in certain terms.
So where A was sued on a Bill of Ebcchange accepted in his name
by B, in order to prove that B had general authority to accept biUs
in the name of A, evidence was admitted of A's having acknowledged
his liability on another bill accepted in his name by B. — Gibson v.
Hunter, 2 H. B., 288.]
(2.) This seems to supply the place of Sections 50 and 51 of Act II
of 1855, which provided (1) that when a letter book, duly kept is pro-
duced, and it is proved that a letter copied into it was despatched in
the ordinary course, the Court may presume its despatch : and (2)
that when a book is kept for marking despatch and receipt of letters
and a letter is entered as received, the entry shall be primd fade
evidence of its receipt.
These facts would, under Section 114, justify the Court in presum-
ing despatch or receipt]
Admissions.
17. An admission is a statement, oral or docu-
Admiasions de- mentary, which suggests any inference
^»®^' as to any fact in issue or relevant fact,
and which is made by any of the persons, and under
the circumstances, hereinafter mentioned.
[An admission, under the above definition, is 'a statement as to
certain things made by certain persons, whatever he the inference
which it mggests. Whether, therefore, the statement denies or admits
a fact, it will be equally an admission, if it complies with the require-
ments of the following sections. It must be observed that, under
the present Act, an admission has not the effect of i>recluding the
person who made it from giving evidence to contradict it : an admis-
sion is evidence of the fact stated, and often of coarse very strong
evidence : but it is not conclusive proof, (see Section 31), and tmless
the person making it is estopped under the provisions of Sections
115 — 117, he is at liberty to contradict it if he can.]
18. Statements made by a party to the proceed-
ing, or by an agent to any such party.
Admission- whom the Court regard,S; under the
Digitized by VjOOQIC
SEC. V7 — 18.] ADMISSIONS. 29
by party to circumstances of the case, as expressly
proceecUngorhia or impliedly authorized by him to
agent; make them, are admissions/ 1)
Statements made by parties to suits suing(2)or
sued in a representative character are
resentative^^' ^^* admissious, unlcss they were made
racter ; *' Avhilc the party making them held that
character.
by party inter- Statements made by—
ested in subject- (l) persons who havo any proprie-
matter ; ^^^^ ^^ pecuniary interest in the sub-
ject-matter of the proceeding, and who make the state-
ment in their character of persons so interested, t^) or
by person from (2) p^rsons from whom the parties
whom interest to the suit have derived their interest
derived. j^^ ^j^^ subjcct-mattcr of the suit,W
are admissions if they are made during the conti-
nuance of the interest of the persons making the
statements.(S)
[ (1.) As the rule admitting the declaratioiis of the agent is founded
upon his legal identity with the principal, they bindf only so far ad
the agent had authority to make them. — TayL, § 540. Care must there-
fore be taken, as to statements by agents and servants, to see that
they are of such a nature as to mil within the scope of the agent's
employment, and are such as the agent is expressly or implicitly
empowered by his principal to make. Thus what is said by an agent
respecting a contract or other matter in the course of his employment,
is an admission as against the principal in a suit grounded on such
contract or matter ; out what he said by him on another occasion is
not an admission. — Feto v. Hague, 5 Esp,, 134.
Accordingly " when a horse dealer or Uvery-stable keeper employs
a servant to sell a horse, any statement made by him at the time of
sale, even though it amount to a warranty of soundness, which the
servant has been really ordered not to give, will, as it seems, bind the
master ; but the servant's declarations or acknowledgments at any
other time, whether made to a'Stranger or to the purchaser, will not
be received."— ^roc^y v. Tod., 30 £. J., C. P., 224. The test is
whether the person making the statements was expressly or impliedly
authorized by his employer to do so : thus a statement by a Night
Inspector at a Hallway station, that he had forgotten to forward
certain cattle, was excluded on the ground that it did not fall within
the scope of his duties to make aomissions as to past transactions.
— Willis V. Great Western Railway Company, 34 L, J., G, P., 195.
AVhere a petitioning creditor, knowing that his servant could prove
Digitized by VjOOQIC
30 ADMISSIONS. [CH. II,
a particular act of bankruptcy, sent him expressljr for that purpose to
be examined at the opening of the fiat, the depositions so made ^w^ere
held to be evidence of the act of bankruptcy, as against the
petitioning creditor, where that fact was put in issue in an action
brought against him by the assignees.— ray^., § 691. Under the
present section the question would be whether the servant Tvas,
under the circumstances, an agent of the petitioning creditor, autho-
rized to prove the act of bankruptcy. If lie was, the servant's state-
ment would be an admission as against the creditor. With regard to
Counsel, Attorneys, Pleaders, <fcc., they would doubtless be regarded
by the Court as empowered to make admissions on behalf of their
clients in all matters relating to the progress and trial of the cause.
With regard to facts admitted in Court by the parties or their agents
it will be seen at Section 58 that, when such admissions are made,
the Judge may dispense with proof and regard the admitted fact as
proved : a party might accordingly find himself precluded from sub-
sequently contesting a fact so admitted. The principle has been thus
laid down in the rrivy Council. The admission and consent of a
Vakeel, made with due authority, will bind his client, though not pre-
sent at the time of making it : where, therefore, an order was made
for the payment of a certain sum, being the moiety of the profits
of an estate, founded on an amount calculated in a particular manner,
which amount was admitted and assented to by the Vakeel in Court,
and the order made accordingly, — held by the Judicial Committee
(affirming the Judgment of the Court below), that such consent
was binding on the client, and precluded him from afterwards opening
the account. — {Rajunder Narain Rai v. Bijai Govind Sing\ 2M.I.A.y
517.
The question as to whether a wife has authority to make a state-
ment, so as to render it an admission as against her husband, must
depend on the facts of the case, as with any other agency : it will
" turn on the degree in which the husband permitted the wife to par-
ticipate, either in the transaction of his affairs in general, or in the
particular matter in (question." — ^'ay^., § 698. It will not follow
Decause she has authonty to make admissions as to one matter, that
she is empowered to make admissions as to another.
Thus when a wife, by her husband's authority, carried on the
business of a shop, and attended to all the receipts and payments,
the Court held that admissions made by her to the landlord of the
shop respecting the amount of rent were not admissible to bind the
husband. Had the admissions related to the receipt of shop goods
they would have been evidence ; but the fact that she was conduct-
ing a. business for her husband, did not constitute her his agent to
make admissions of an antecedent contract for the hire of the shop,
or to make a new contract for the future occupation of it. — Meredith
V. Footner, 11 if. c& W., 202.
The declarations and acts of an agent cannot bind an infant,
because an infant cannot appoint an agent. — Tayl., § 541. But so far
as the validity of the admission itself is concerned, it matters not
whether the person who made it was, at the time of making it, of
full age. Accordingly, in an action against a person for goods supplied
to him during minority, admissions by him while a minor maybe
used —ray/., § 669.
Digitized by VjOOQIC
SEC. 19.] ADMISSIONS. 31
(2) There are conflicting decisions of the English Courts as to
whether statements of a person suing as representative of others,
made before he became such, should be regarded as admissions.
Under the present law they will be excluded, as not being made
while he held Ms representative character.
(3) This would make the statements of joint-tenants, tenants in
common, co-sharers, partners, <fec., admissions against otner persons
similarly interested in the property in question. Admission by a
cestui-que-trust would, in the same way, be admissions as against
the trustee suing in his capacity as trustee.
As to admissions of indebtedness by one co-debtor for the purpose
of preventing a debt being barred by limitation against another co-
debtor, see Act IX of 1871, Section 20, Explanation 2.
(4.) Thus statements of the ancestor would be admissions as
against the heir ; statements by a grantor or donor would be admis-
sions against the grantee or donee ; statements by a former holder
of an office as against his successors in it ; statements of a testator
as against his executor ; statements of an intestate as against his
administrator. So, again, any declaration by a^ landlord, m a prior
lease, which is relative to the matter in issue, and concerns the
estate, has been received in evidence against a lessee, who claims-
by a subsequent title. But the statements of a tenant for life are
not admissions as against the remainder-man or reversioner, because
the one does not derive his interest from the other, though he comes
into possession of it subsequently to him.
(5) " With respect to the time and circumstances of the admission,"
says Mr. Taylor, " it may first be observed that whenever the decla-
rations of a third party are oflfered in evidence on the ground that the
party, against whom they are tendered, derives his title from the
declarant, it must be shown that they were made at a time when he
had an interest in the property in question ; because it is manifestly
unjust that a person who has parted with his interest in property
should be empowered to divert the right of another claiming under
him by any statement that he may choose to make. Thus the
admission of a former party to a Bill of Exchange, made after he has
negotiated it, cannot under any circumstances be received against
the holder ; and where a person had, by a voluntary post-nuptial
settlement, conveyed awaynis interest in an estate, and afterwards
had executed a mortgage of the same property, it was held, that his
admission that money had actually been advanced upon the mort-
gage could not be received on behalf of the mortgagee, who was
seeking to set aside the former settlement as voluntary and void.
So, also, the declaration of a bankrupt, though good evidence to
charge his estate with a debt, if made before his bankruptcy, is not
admissible at all, if it were made afterwards. This most just and
equitable doctrine will be found to apply to the cases of vendor and
vendee, grantor and grantee, and generally to all cases of rights
acquired in good faith previous to the time of making the admission
in question.' —jTay^., § 719.]
19. Statements made by persons whose position
Admissions by ^^ liability it is necessary to prove
persons whose as against any party to the suit, are
Digitized by VjOOQIC
32 ADMISSIONS. [CH. U,
poaitionmustbe admissioDS if such Statements would
proved as against be relevant as against such persons in
i>artytoBuit. relation to such position or liability
in a suit brought by or against them, and if they
are made whilst the person making them occupies
such position or is subject to such liability.
Illiistj^atmi,
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owed B rent is an admission, and is a
relevant fact as against A, if A denies that C did owe rent to B.
[Thus, where A guaranteed the payment for such goods as the
glaintiffs should send or deliver to Cf in the way of trade, a statement
y the principal debtor, C, that he had received goods, would be an
admission as against the surety A, inasmuch as it would be relevant
in a suit brought against C]
20. Statements made by persons to whom a party
Admissiohs by to the suit has oxprossly referred for
personsexpresdy information in reference to a matter in
referred to by j. , j • •
party to suit. dispute are admissions.
Illustration,
The question is, whether a horse sold by A to B is sound.
A says to B— * Go and ask C, C knows all about it.' C's statement
is an admission.
[This, however, will not §ive the force of an admission to everything
stated by a witness, as agamst the party who calls him. These must
be an express reference for information in order for the statement to
become an admission.
Thus if A says " 1 will pay you, if B says I owe it you,'' B's state-
ment about the matter will be an admission as against A.
So when the question was as to a forged note, paid by B to A. B
said "if I have paid it away I had it from C, go and inquire of C
about it ;" C's statement is an admission as against B.]
21. Admissions are relevant and may be proved
ReievMicy of ^ agaiust the person who makes
admissions them, or his representative in interest ;
against or in be
half of
concerxK
half of persons ^^^ they canuot be proved by or on
3med. behalf of the person who makes them
person who makes them
or by his representative in interest, except in the
following cases : —
Digitized by VjOOQIC
SEC. 20—21.] ADMISSIONS. 3S
(1.) An admission may be proved by or on
behalf of the person making it when it is of such a
nature that, if the person making it were dead, it
would be relevant as between third persons under
section thirty-two.
(2.) An admission may be proved by or on
behalf of the person making it when it consists of a
statement of the existence of any state of mind or
body, relevant or in issue, made at or about the time
when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood im-
probable. ^^^
(3.) An admission may be proved by or on
behalf of the person making it if it is relevant other-
wise than as an admission. ^^^
Illustratiom.
(a.) The question between A and B is, whether a certain deed is
or is not forged. A affinns that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B
may prove a statement by A that the deed is forged ; but A cannot
prove a statement by himself that the deed is genuine, nor can B
prove a statement by himseK that the deed is forged.
(6.) A, the Captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her pro-
per course.
A produces a book kept by him in the ordinary course of his busi-
ness, showing observations alleged to have been taken by him from
day to day, and indicating that the ship was not taken out- of her
proper course. A may prove these statements, because they would
be admissible between third parties, if he were dead, under section
thirty-two, clause (two).
(<7.) A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on
that day and bearing the Lahore post-mark of that day.
The statement in the date of the letter is admissible, because, if A
were dead, it would be admissible under section thirty-two, clause
(two).
(ct) A is accused of receiving stolen goods knowing them to be
stolen.
He offers to prove that he refused to sell them below their value.
A may prove these statements, though they are admissions, because
they are explanatory of conduct influenced by facts in issue.
Digitized by VjOOQIC
34 ADMISSIONS. [CH. II,
(«.) A is accused of fraudulently having in his possession counter-
feit coin, which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the
coin, as he doubted whether it was counterfeit or not, and that that
person did examine it and told him it was genuine.
A may prove these facts for the reasons stated in the last preced-
ing illustration.
[(1) The rules provided by this section are grounded on the principle
that previous statements of the parties ought to be admissible only
when the circumstances are such as to render their truthfulness emi-
nently probable. If a man might bring evidence promiscuousAjr to
prove statements made by himself favorable to his own case, nothing
would be easier than for a party who had a weak case to strengthen
it by making such statements before-hand, or by suborning witnesses
to speak to having heard him make such statements. A vast mass of
the most worthless evidence would thus be imported into the case.
This is guarded against in the present section by the general rule
that statements made by a man can be proved, not by or on behalf
of himself, but only by or on behalf of his antagonist ; so that it will
be only such of his statements as make against his cause and favor
that of his antagonist that will be let in ; and such statements may of
course be generally relied on as truthful. This rule, however, if
enacted without any relaxations, would work harshly, as there are
some statements which, though they are in the interest of the person
making them, are yet from some particular circumstance deserving of
especial credit. Such for instance are the statements mentioneain
section thirty-two of the Act, to which Illustrations (6) and (c) refer.
The entries which a man makes in the regular course of his Dusiness
are presumably truthful, and though they happen to be in his favor,
he ought not to be debarred from proving them as part of his case.
So with regard to the admissions specified in (2) it would, no doubt,
be dangerous as a general rule, to allow a man to prove on his behalf
his own statements as to his feelings ; but the danger is guarded
against by the proviso that the admission, in order to be admissible,
must be made about the time when the feeling exist^ and be
accompanied by conduct rendering its falsehood improbable. So
also with regard to the cases provided for in (3), of which Illustra-:
tions {d) and {e) give instances. In all alike there is something which
rebuts the probability that what a man says may be unduly influenced
by the wish to better his own case.
The principle, on which such statements are admissible against but
not in lavor of tne declarant, was exemplified in a recent English case.
The carriage of P was driven against the carriage of M, whereby
M*s thigh was broken. On the trial of an action by M against P for
this, S, a surgeon, was called as a witness for M ; M recovered
600^5 damages against P. S afterwards brought an action against M
for his services as a surgeon in attending M after his thigh was
broken. The counsel of S proposed to go into evidence to show what
S stated as to the amount of his charge for attendance on M in giving
his evidence on the trial of the action by M against P :— Held, that
such evidence was not admissible. —ASw^Aer^awcT v. M'Lavghlin, Car,
dc J/.. 429.
Digitized by VjOOQIC
SEC. 22.] ADMISSIONS. 85
This statement was held to be inadmissible for him, though it
-would have been admissible against him ; it would, however, be
admissible under the present Act for him as corroborative evidence
under Section 157.
So, in an action for falsely representing the solvency of a stranger,
whereby the plaintiffs were induced to trust him with goods, state-
ments by them at the time when the goods were supplied, that they
trusted nim in consequence of the representation, would be admis-
sible on their behalf, either under (1) as made in the ordinary course
of business, or, under (2), as a statement as to state of mind, made
• about the time and accompanied by circumstances rendering its false-
hood improbable.
Frequently statements made by persons under legal compulsion
become admissions in another proceeding. They do not cease to be
admissions in Civil cases because made under compulsion. See post,
Section 132. " Thus affidavits sworn by a party in former legal pro-
ceedings, answers filed by him in Chancery in a former suit, evidence
given by him in an action at law, or his examination taken before
commissioners of bankruptcy, will be evidence against himself in a
subsequent cause and this, too, though his subsequent opponent was
a stranger to the prior proceeding." — TayL, § 723.
(2) Thus the recitals in a deed admissible as a transaction by
which a right was asserted, &c. would be admissible under Section
13, though they will be excluded as admissions.
Mr. Norton considers that the provisions of these sections, so far as
regards admissions by agents,* must be restricted to Civil cases. The
wording of Section 23, where a provision is expressly confined to Civil
cases, does not favor this view.]
22. Oral admissions as to the contents of a docu-
When oral ad- ment are not relevant, unless and until
missions as to ^\^q party proposingf to prove them
contents of docu- . ii , i - i'Tii,^* t
ments are reie- SHOWS that he IS entitled to givosecond"
^*^*- ary evidence of the contents of such
document under the rules hereinafter contained, or
unless the genuineness of a document produced is in
question.
[This is a change from the English Law, according to which the
oral admission of a party as to the contents of a document is admit-
ted, even when the document might have been produced, as evidence
against him. — Slatterie v. Pooley^ 6 M, <b W., 669.
The propriety of the rule, however, has been much questioned, on
the ground that, though what a party himself admits may reasonably
be presumed to be true, there is no such presumption in favor of the
truthfulness of the evidence by which such admission must be proved.
"The doctrine," said Penefather, C. B., in reference to Jslatterte
and FooUy " laid down in that case is a most dangerous one : by it
a man might be deprived of an estate of £lOfiOO a year, derived
• Nor., 144.
Digitized by VjOOQIC
8() ADMISSIONS. [CH. II,
from his ancestors through regular family deeds and conveyances,
by producing a witness, or by one or two conspirators who might
be got to swear that they heard the defendant say that he had con-
veyed away his interest therein, or had mortgaged or had otherwise
encumbered it : and thus by the facility so given the^ widest door
would be opened to iT3i,ud''— Lawless v. Queale, 8 Irish L. E., 382.
This view has been adopted in the present Act : oral admissions as
to the contents of a document are excluded under the present
section : written admissions as to such matters are, as will be seen at
Section 65 (6), admissible. This Section will not of course exclude
admissions wMch the parties agree to make at the trial, Section 58 :
in Which case it becomes unnecessary to prove the fact so admitted.
As to the mode of proving the contents of documents, see Sections
64, 65 and 91.]
23. In civil cases no admission is relevant, if it
.^ ^ . , . is made either upon an express condi-
Oertain admis- r ^ ., .^ x i. u
siona notreievant tion that evidence 01 it IS not to be
in civU cases, given, or Under circumstances from
which the Court can infer that the parties agreed
together that evidence of it should not be given.
Explanation. — Nothing in this section shall be
taken to exempt any barrister, pleader, attorney or
vakil from giving evidence of any matter of which he
may be compelled to give evidence under section 126.
[" Confidential overtures of pacification and any other offers or
jpropositions between litigating parties, expressly or impliedly made
toithout pr^'vdice, are excluded on grounds of public policy. For with-
out this protective rule, it would often be difficult to take any step
towards an amicable compromise or acyustment, and as Lord Mans-
field has observed, all men must be permitted to buy their peace, with-
out prejudice to them should the offer not succeed."— Tag/Z., § 720.
Whenever, accordingly, litigating parties have made and entertained
overtures for a peaceful adjustment of the dispute, the Courts will
no doubt be disposed to infer that the parties did not intend evidence
to be given of the facts communicated in the course and on the faith
of the pending negotiation.
" If a letter sent by an Attorney to the opposite party be expressed
to be written " without prejudice, it cannot oe receivM as an admis-
sion : neither can the reply be admitted, though not guarded in a
similar manner."— TayZ., $ 702, Paddock v. Forrester, 3 M. dc Gr.,
903. When a man offers to compromise a claim he does not thereby
admit it, but simply agrees to pay so much to be rid of the action.
Mr. Norton quotes a case in which a lawyer's clerk, sued for breach
of promise of marriage, objected to the production of his love-letters
on the ground that they were signed "Yours very affectionately,
without |)rejudice." In order, however, to make good his contention
under this section he would have to show that the understanding
Digitized by VjOOQIC
SEC. 23 — 24.] ADMISSIONS. 37
between him and the lady as to their letters was that evidence of
their contents should not be given.
Admissions made before an arbitrator, do not fall within the pro-
tection afforded by the section, but are receivable in a subseq^uent
trial of the cause, the reference having proved ineffectual — Tayl.,^721,
The Explanation refers to the obligation on the part of Barristers
and others to answer questions as to professional communications
made to them in furtherance of a criminal purpose or as to any fact
observed showing the Qommission of a crime or fraud since the com-
mencement of their employment.]
24. A confession made by an accused person is
Confession irrelevant in a criminal proceeding, if
^^^edbyinduce- ^he making of the confession appears
promise irreie- to the Court to have been caused by
^*^*- any inducement, threat or promise,
having reference to the charge against the accused
person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him
reasonable, for supposing that by making it he would
gain any advantage or avoid any evil of a temporal
nature in reference to the proceedings against him.
[The saying that " an accused person, confessing, is the best of
witnesses is not to be unreservedly accepted. The Text books
abound in stories of persons who from terror, confusion, the hope of
shielding others, weariness of life, a morbid and diseased state of
mind or other cause, have recorded confessions which have subse-
quently proved to be untrue. Sometimes when there is a strong case
against the accused, they imagine that ac(}uittal is impossible and
that their only chance of a light sentence is to make a penitential
cx>nfession : sometimes, and notably in India, it is to be feared that
a confession is wrung out of the accused by a resort to moral and
physical torture on the part of the police.* The law accordingly
scrutinizes all confessions with a jealous eye. " A confession," said
Chief Baron Eyre. " forced from the mind by the flatteries of hope, or
by the torture oi fear, comes in so questionable a shape, when it is
to be considered as evidence of guilt, that no credit ought to be given
to it." In 'order, however, to exclude a confession, the tnreat,
inducement or promise, which occasioned it must be of the character
described in this section : it must emanate from a person in autho-
rity, such as a master or mistress, a Magistrate, constable or other
official in charge of the accused : it must refer to temporal good to be
gained or temporal evil to be avoided in reference to the proceedings,
• Torture for the purpose of eliciting the truth from prisoners, was not
unknown in English Courts up to the commencement of the 17th century :
but the punishment of the rack was formally pronounced illegal by the
Judges in lfi2S.—Tayl, § 809.
Digitized by VjOOQIC
I
38 ADMISSIONS. [CH. II,
and therefore a confession obtained by spiritual exhortations is
admissible : the advantage to be gained must have reference to the
proceedings against the accusedj so that a confession prompted by a
promise of matters having nothing to do with the charge, such as that
the prisoner should have some beer, or that he should see his wife,
would not be excluded. The inducement held out need not be a real
advantage. It is enough if the Court consider that the prisoner had
grounds, which appeared to him reasonable, for supposing it to be so.
Nor is it necessary that the inducement shall have proceeded directly
from the person in authority to the accused : thus a threat made to a
prisoner's wife might operate to exclude a subsequent confession, if it
appears that the confession was occasioned by it.
Mere exhortations to tell the truth would not exclude subsequent
confessions ; though, of course, the accused might be urged " to tell
the truth" in such a way as to give him clearly to understand that the
best thing he could do would be to confess, and a confession so
obtained would be within the scope of this section.
By Section 122 of the Code of Criminal Procedure no Magistrate is
to record a confession unless upon inquiry he has reason to believe that
it was made voluntarily, and he has to attach a memorandum to this
effect to the confession.
Bentham places " the infirmative considerations applicable to the
probative force" of confessions under the headsof(l) Misinterpre-
tation, 2 Incompleteness, 3 Mendacity. Misinterpretation is where a
wrong meaning is put by the witness on something said or done by
the person supposed to have confessed, and when, accordingly,
" that which really is not a confession might be taken and acted
upon as such." It is possible that the confessing person may have
expressed himself incorrectly and the witness not have gathered his
real meaning. An instance of this is the case of an accused person,
in whose presence a witness was examined and having been asked
whether the accused was the man who committed the crime replied in
the negative : whereupon the accused person exclaimed, " Thank God,
here is a man who has not recognized me ;" what he really meant was,
" Here is a man who has recognized that it was not I." Incompleteness
is when the loose and imperfect language of the confessor has^
failed to give a correct view of the whole matter confessed : Men-
dacity is when, from any of the various motives affecting human
action, an intentionally false confession is made. To guard against
false confessions Bentham lays down the following two rules :
" (1) One is that, to operate in its character of direct evidence, the
confession cannot be too particular : in respect of all material circum-
stances, it should be as particular as by dint of interrogation, it can
be made to be : why so 1 Because (supposing it false) the more parti-
cular it is, the more distinguishable facts it will exhibit, the truth of
which (supposing them false) will be liable to be disproved by their
incompatioility with any facts, the truth of which may have come to
be established by other evidence.
(2) The other rule is that, in respect of all material facts (espe-
cially the act which constitutes the physical part of the offence) it
ought to comprehend a particular designation of the circumstances
of time and place. For what reason 1 For the reason already men-
tioned : to the end that in the event of its proving false, facts may
Digitized by VjOOQIC
SEC. 25 — 26.] ADMISSIONS. 39
be found by which it may be proved to be so. " I killed such a man'*
says the confessionalist " on such a day at such a place." " Im-
possible," says the Judge, speaking from other evidence, " on that day
neither you nor the deceased were at that place." — Benth. Ratio.
JEvicL, Vol. vii.
Doubts have been felt as to whether, under the English Law, a
prisoner can, as an ordinary rule, be convicted on a mere extra-
judicial confession without corroborative evidence. — TayL, § 794.
Under the present law no such doubt will arise. If the confession
be legally obtained it will be relevant, and the Judge can, if he think
it, under the circumstances, sufficient proof of the oflfence, convict
upon it in the absence of any other evidence.
As to Confessions before a Court, see C. P. C, S. 324.
The fact of a confession being retracted before the trial does not
affect its admissibilty. Even though retracted in the Sessions Court
and uncorroborated, it may be ground for a conviction.^ — R, v.
BkiUtun Rajwan, 13 5. W, R., Cr. R., 49. The averment on the
Magistrate's record that, the accused before making the confession
was warned that it was optional with him to answer the questions
put to him, it is not conclusive to show, that the confession was
not made under the influence of its previous treatment, or is not
otherwise valueless. — R, v. Kashniath Dmkar, 8 Bomb, Cr, Cos., 126.
In England it has been held that, in a suit for dissolution of mar-
riage on the ground of the wife's adultery, entries in her private
diary, detailing Acts of adultery committed by her with the co-respond-
ent are, if they amount to a distinct and unequivocal admission^ of
adultery by the respondent, and are free from suspicion of collusion
or other taint, grounds on which the Court may, in the absence of
any corroborative evidence, proceed to give the injured party the
relief sought for : but such evidence must be received with extreme
caution. — Robinson v. Robinson and Lane, 29 L, «/., Pr, do M,, 17.
In Reg, v. Hic/ds, 10 Beng, H, C, R., App, 1, Phear, J. refused to
admit evidence of a confession made immediately after the prisoner
had been threatened with a loaded rifle, although the threat was not
for the purpose of extorting the confession but of suppressing a mutiny
on board ship. This scarcely seems justified by the section.]
Confession made 25. No coiifession made to a Police
notfoteufdL' officer, shall be proved as against a
evidence. person accused of any offence.
[See C. P. C, S. 121.
As to punishment for causing hurt for the purpose of extorting
confession or information which may lead to the detection of an
offence, see I. P. C, Sees. 330, 331.]
26. No confession made by any person whilst he
Confeswonmade IS iH the custody of a PoHco oflScer,
by accused while unless it be made in the immediate
PoiicT not ^o be presence of a Magistrate, shall be
used as evidence, proved as against such person.
Digitized by VjOOQIC
40 ADMISSIONS. [CH. II,
[By Sectionl 120 of C. P. C, no Police Officer or other person
may endeavour to induce any accused person, whether under arrest
or not, to make a disclosure or confession, but he is not to prevent
its being made. See also the same provision in case of persons
arrested under warrant. Section l84.
It is not necessary that the Magistrate should have jurisdiction to
try the offence. C. P. C, S. 45.]
27. Provided that, when any fact is deposed to
as discovered in consequence of infor-
statementorcon- mation received from a person accused
fession n.ade by of any offeuce, in the custody of a
tr^fact thereby Polico ofBcer, SO luuch of such infor-
discovered, may mation, whether it amounts to a con-
^^ ^ ' fession or not, as relates distinctly to
the fact thereby discovered, may be proved.
28. If such a confession as is referred to in sec-
^ . . , tion twenty-four is made after the
Confession made . . •/ . i • i
after removal of impressiou caused by any such mduce-
impfe^ssionjaus- ^^^^^^ threat, or promise has, in the
ment, threat of opiuiou of the Court^ been fully re-
promisereievant. j^^yed, it is relevant.
[ Thus, when a Magistrate told a prisoner charged with murder,
that if he was not the man who struck the fatal blow and would
disclose all he knew respecting the matter, he would use his influence
to protect him ; but, on subsequently receiving a letter from the
Secretary of State refusing mercy, he communicated its contents to
the prisoner ; it was held that a confession, which the prisoner after-
wards made to the coroner, who had also duly cautioned him, was
clearly voluntary, and as such it was admitted. So when the accused
had been induced by promises of favour to make a confession, which
was for that cause excluded, but some months afterwards, and after
he had been solemnly warned by two Magistrates that he must expect
death and prepare to meet it, he again f uUy acknowledged his guilt,
this latter confession was received in evidence. — Tayl., § 802.
So also when a child, charged with theft, was told by her mistress
that if she did not tell all about it that night, the Constable would
be sent for to take her to the Magistrate : the Constable was sent
for and on her way to the Magistrate the child confessed to the
Constable ; her confession was held to be admissible, inasmuch as
the inducement, viz, the promise that the Constable should not be
sent for was at an end, since he had been sent for. — B. v. Eichards,
bC.d! P., 318.]
29. If such a confession is otherwise relevant, it
^ , does not become irrelevant merely
Confession, ., i i .*'
otherwise reie- Dccause it was made under a promise
Digitized by VjOOQIC
(
SEC. 27—30.] ADMISSIONS. 41
vant not to be- of secrecy, or in consequence of a
IT^.. '""Jfl^l^* deception practised on the accused
because of pro- ^ r It. r t.x • • 'i.
mise of secrecy, persou toT the purpose 01 obtaining it,
*^' or when he was drunk, or because it
was made in answer to questions which he need not
have answered, whatever may have been the form
of those questions, or because he was not warned
that he was not bound to make such confession, and
that evidence of it might be given against him.
30. When more persons than one are being tried
lointly for the same offence, and a
Consideration /•• ji. i^-L
of proved confes- iJonfession made by one oi such per-
sionaffectingper- gons affecting himself and some other
son making it and /» i ° • j x-l r>t x
others jointly un- 01 such persons IS provcd, the Court
der trial for same jQ^y take iuto consideration such con-
ofifence. /» • • , i ,^
tession as against such other person
as well as against the person who makes such con-
fession.
Illustrations,
(a) A and B are jointly tried for the murder of C. It is proved
that A said,—" B and I murdered C." The Court may consider the
effect of this confession as against B.
(6.) A is on his trial for the murder of C. There is evidence to
show that C was murdered by A and B, and that B said,—" A and
I murdered C."
This statement may not be taken into consideration by the Court
against A, as B is not being jointly tried.
[The policy of this section has been much questioned, and Mr.
Norton goes so far as to say that ** the best * consideration' which the
Court can give to a confession within this section will probably be to
hold that it will not act upon it against third parties/'* If this
means that a Court ought not, unless under circumstances altogether
exceptional, to rely on the uncorroborated confession of a co-
accused person, the caution is no doubt, a sound one. But if by
" not actmg on it" is meant that the confession is to be banished from
the Judged mind and is not to form one ingredient in the conclu-
sion which he forms about the case, the intention of the section
would be, it is submitted, altogether frustrated by the course recom-
mended. The reasons for allowing the Judge to take into considera-
tion confessions of this character have been discussed in the Intro-
duction : they follow necessarily from the principle, enforced by
Bentham and now generally accepted as the right one, of admitting
everything for what it is worth, unless, from the circumstances of
the case or the character of the Tribunal, some obvious danger or dis-
• Nor., 173~
Digitized by VjOOQIC
42 STATEMENTS BY PERSONS WHO CANNOT BE [CH. 11,
CALLED AS WITNESSES.
advantage would arise from doing so. The exclusion of various pieces
of evidence under English Law is owing to the circumstance that it
has been considered, on the whole, dangerous to entrust the con-
sideration of them to a Jury ; indeed the whole Law of Evidence has
been, as Sir H. Maine points out,* shaped with reference to a pro-
cedure under which one part of the case is decided by the Judge and
one by the Jury. In India, where the functions of Judge and Jury
are united in a single official, it is unnecessary to insist upon the
exclusion of a class of statements, which, though generally in a high
degree suspicious, may yet throw some light on the case and are
occasionally of the utmost importance. The approver's evidence,
admissible under Criminal Procedure Code, is infinitely more suspi-
cious, because he has a distinct motive for speaking ; yet it is thought
on the whole better to have it than not. On the other hand it is easy
to conceive circumstances in which a confession by a co-accused
would be perfectly safe ground on which to base an inference. See
Section 114, Illustration (6). The proper coiu-se is clearly for Courts
to carry out the directlolT of the section, take the confession into
consideration, not forgetting how very little it is, in the generality of
cases, worth, but not refusing to assign to it such weight as it
deserves.
In Criminal Proceeding, Mad. H. C, 24th January 1873, a conviction
unsupported by other evidence than a confession * considered' under
this section was quashed as bad in law.
This section would not, in a divorce suit, apply to confessions of
adultery by a respondent or co-respondent as against the other party,
since such persons are not being "jointly tried for the same offence."
The admission of a respondent will thereifore remain inadmissible as
against a co-respondent, as in Engla.nd.—JKobinson v. Hobinson and
Lane, 29 L. J., P. <k M., 17.]
31. Admissions are not conclusive proof of the
Admissions not matters admitted, but they may ope-
conciusive Voof, rate as estoppels under the provisions
but may estop. hereinafter contained.
[As to estoppels, see/>05^. Chapter VIII, Sections 115-117.]
Statements by persons who cannot be called as
witnesses.
32. Statements, written or verbal, of relevant
r. • u- u f^^^s made by a person who is dead.
Cases in which ■• t ^ n i ^ ^^^^m.^
statement of re- or wno cannot be found, or who has
Sn wHo \ ^^^^^^ incapable of giving evidence,
iieati or cannot or whoso attendance cannot be pro-
reieva^^^^^ ''"' ^' ^^^^^ without an amount of delay or
expense which, under the circum-
* Fortnightly JEleyie\vrJan. 1873. ~
Digitized by VjOOQIC
SEC. 31—32.] STATEMENTS 'BY PERSONS WHO CANNOT BE 43
CALLED AS WITNESSES.
stances of the case, appears to the Court unreason-
able, are themselves relevant facts in the following
cases :—r
(1.) When the statement is made by a person,
When it relates as to the cause of his death, or as to
to cause of death; ^luj of the circumstanccs of the trans-
action which resulted in his death, in cases in which
the cause of that person's death comes into ques-
tion.(i)
Such statements are relevant whether the person
who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question.
(2.) When the statement was made by such per-
, . son in the ordinary course of business,
or 13 made in , . j • i i • , • i /•
course of busi- and lu particular when it consists oi
"®S3 ' any entry or memorandum made by
him in books kept in the ordinary course of busi-
ness, or in the discharge of professional duty ; or of
an acknowledgment written or signed by him of the
receipt of money, goods, securities or property of
any kind ; or of a document used in commerce writ-
ten or signed by him, or of the date of a letter or
other document usually dated, written or signed by
him.(2)
(3.) When the statement is against the pecuniary
or against in- or proprietary interest of the person
terestof maker; making it, or whsu, if truc, it would
expose him or would have exposed him to a criminal
prosecution or to a suit for damages.O"^)
(4.) When the statement gives the opinion of
any such person, as to the existence
or gives opinion ^f ^^y public right Or CUStom or mat-
as to public nght n ^ 11- ° 1 • i J. /A\ n
or custom or mat- tcr 01 public or general interest, W of
teresf j^"""""*^^' the cxisteuce of which, if it existed,
he would have been likely to be
Digitized by VjOOQIC
44 STATEMENTS BY PERSONS WHO CANNOT BE [CH. II,
CALLLED AS WITNESSES.
aware,(5) and when such statement was made before
any controversy as to such right, custom or matter
had arisen. <^)
(5.) When the statement relates to the existence
or reiatea to ^f ^^7 relationship pby blood, mar-
existence of reia- riage OT adoption] between persons as
tionahip ; ^^ whoso relationship the person mak-
ing the statement had special means of knowledge,(7>
and when the statement was made before the ques-
tion in dispute was raised. (^)
(6.) When the statement relates to the existence
or is made in ^f ^^7 relationship Pby blood, mar-
wiu or deed of riage OT adoption] between persons
deceased person; deccascd, and is made in any will or
deed relating to the affairs of the family to which
any such deceased person belonged, or in any family
pedigree, <^) or upon any tombstone, family portrait
or other thing on which such statements are usually
made, and when such statement was made before
the question in dispute was raised. (^^)
or relates to .(^O . When the Statement is con-
transaction men- taiued in any deed, will or other docu-
iM^iauTe?a;*r^ mcut which relates to any such trans-
action as is mentioned in section thir-
teen, dause (a)M^)
or is made by (g.) When the statement was made
several persons, -t ' t n i i
and expresses by a number 01 persons, and expressed
feelings relevant feelings or impressious on their part
tion.* ®'"*^^®^' relevant to the matter in question. (^2)
Illtistrations.
(a.) The question is, whether A was murdered by B ; or
A dies of injuries received in a transaction in the course of which
she was ravished. The question is whether she was ravished by B : or
The question is, whether A was killed by B^ under such circum-
stances that a suit would lie against B by A's widow.
* Added by Act XVIII of 1872.
Digitized by VjOOQIC
SEC. 32.] STATEMENTS BY PERSONS WHO CANNOT BE 45
CALLED AS WITNESSES.
Statements made by A as to the cause of his or her death, refer-
ring respectively to the murder, the rape, and the actionable wrong
under consideration, are relevant facts.
(5.) The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon, regularly kept in the
course of business, stating that, on a given day, he attended A's
mother and delivered her of a son, is a relevant fact.
(c.) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in
the course of business, that, on a given day, the solicitor attended A
at a place mentioned in Calcutta, for the purpose of conferring with
him upon specified business, is a relevant fact.
(d.) The question is, whether a ship sailed from Bombay harbour
on a given day.
A letter written by a deceased member of a merchant's firm, by
which she was chartered, to their correspondents in London to whom
the cargo was consigned, stating that tne ship sailed on a given day
from Bombay harbour, is a relevant fact.
(e.) The question is, whether rent was paid to A for certain land.
A letter from A's deceased agent to A, saying that he had received
the rent on A's account and held it at A's orders, is a relevant fact.
(/.) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under
such circumstances that the celebration would be a crime, is relevant.
(g,) The question is, whether A, a person who cannot be found,
wrote a letter on a certain day. The fact that a letter written by
him is dated on that day, is relevant.
(h.) The question is, what was the cause of the wreck of a ship.
A protest made by the captain, whose attendance cannot be pro-
curea, is a relevant fact.
(i.) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road
was public, is a relevant fact.
0*.) The question is, what was the price of grain on a certain day
in a particular market. A statement of the price, made by a deceased
b^nya in the ordinary course of his business, is a relevant fact.
(k,) The question is, whether A, who is dead, was the father of B.
A statement by A that B was his son, is a relevant fact.
(L) The question is, what was the date of the birth of A.
A letter from A's deceased father to a friend, announcing the birth
of A on a given day, is a relevant fact.
(w.) The question is, whether, and when, A and B were married.
An entry in a memorandum book by C, the deceased father of B,
of his daughter's marriage with A at a given date, is a relevant fact.
(n.) A sues B for a libel expressed in a painted caricature exposed
in a shop window. The question is as to the similarity of the cari-
Digitized by VjOOQIC
46 STATEMENTS BY PEKSONS WHO CANNOT BE CH. II,
CALLED AS WITNESSES.
cature and its libellous character. The remarks of a crowd of specta-
tors on these points may be proved.
[ (1) This is an important extension of the former law, according
to which it was essential, in order to let in a dying declaration, that
the declarant should have been and should have thought himself to be
in danger of approaddng death. According to English Law, moreover,
such statements are admissible only in cases of homicide, '* when
the death of the deceased is the subject of the charge, and the cir-
cumstances of the death are the sublect of the dying declaration/'
Thus, on a trial for robbery, the dying declaration of the party robbed
has been rejected ; and where a person was indicted for administering
drugs to a woman with intent to procure abortion, her statements in
extremis were held to be inadmissible. — TayL, §§ 644—5. Under the
present section such statements are admissible 'whatever be the
nature of the proceeding,' as in a trial for procuring abortion, or in a
civil action for unskilful surgery : and the statement is admissible
whether it is as to the cause of death, or as to any of the circumstances
of the transactions which resulted in the person's death : it must,
however, be in a case in which the cause of the person's death comes
into question.
Such a statement would generally, it is apprehended, be relevant,
under Section 14, whether the person making it were dead or not.
But the statement must be more than a mere expression of assent to
another person's statement ;
*• Where a statement, ready written, was brought by the father of the
deceased to a Magistrate who accordingly went to the deceased and inter-
rogated her to its accuracy, paragi-aph by paragraph, it was rejected in
Ireland by Mr. Justice Crampton, who observed that, ''in a state of lan-
gour in which dying persons generally are, their assent could be easily got
to statements which they never intended to make, if they were but in-
geniously interwoven by an artful person with statements which were
actually true."— T'ay^, § 650.
The English ruling, i?. v. Pike, 3 C. db P., according to which the
dying declaration of a child of such tender years that she could not
understand the doctrine of a future state, was rejected, is not applic-
able under the present section ; nor, it is submitted, is the question
of the competence of the person to bear testimony one which affects
the admissibility of the statement. If it complies with the require-
ments of this section it is relevant, though, possibly, of small import-
ance.
But dying declarations, other than those now provided for, are in-
admissible, unless they can be shown to be relevant under some other
section. Thus where a man was tried on an indictment for murder,
the prisoner was not allowed to avail himself of the statement of a
stranger, who on his death bed confessed titat he had committed the
crime. Such a statement, moreover, might probably be shown to fall
within the scope of Clause (3) of the present section.
(2) The most familiar English case on this subject is that of
Price y. The Earl of Torrington (\ Smith, L, (7., 139^, in which the
plaintifl^ a brewer, brought an action against the defendant for beer
sold and delivered. The evidence against the defendant was, that
the usual way of the plaintiff's dealing was, that the draymen or
Digitized by VjOOQIC
SEC. 32.] STATEMENTS BY PERSONS WHO CANNOT BE 47
CALLED AS WITNESSES.
carters, came every night to the clerk of the brew-house, and gave
him an account of the beer they had delivered out, which h€ set
down in a book kept for that purpose, to which the draymen set their
names ; and that the drayman who had delivered the beer in question
was dead ; but the book was produced and bore his signature. This
was held good evidence of delivery of the beer.
If the entry was made in the course of business no question as to
the source of information, on which the entry was based, will affect
its admissibility. According to English Law such an entry must be
based on the personal knowledge of the person making it.
'' Thus in an action for the price of coals, which had been sold at the
pit's mouth, an entry was rejected, which appeared to have been made
m the following manner. In the ordinary course of business, it was the
duty of one of the workmen at the pit, named Harvey, to give notice
to the foreman of the coal sold; and the foreman, who was not pre-
sent when the coal was delivered, and who was unable to write, used
to employ a man named Bald^vin to -make entries in the books fntm his
dictation. Baldwin read over these entries every evening to the foreman.
At the time of the trial, Harvey and the foreman were dead, and Baldwin
was called to produce this book, with the view of proving thereby the
delivery of the coal in question ; but the Court held that it was inadmis-
sible. The ground of this decision appears to have been, that, although
the entries, being made under the foreman's direction, might be regarded
as made by him, yet, inasmuch as he had no persomal knowledge of the
facts stated in them, but derived his information at second-hand from the
workman, there was not the same guarantee for the truth of the entries as
might be found in Price v. Torrington, Doe v. Turford, and Poole v. Dicas ;
in all of which cases the party making the entry had himself done the
business, a memorandum of which he had inserted in his book.'' — Tayl.,
§632.
Under the present section, it is not necessary that the person
making the entry should have a personal knowledge of the fact
recorded ; it would be sufficient to show that the entry was made in
the ordinary course, and that the question as to how the person making
the entry came to know about the matter, though it might affect the
weight to be given to the entry, would not affect its admissibility.
According to English Law entries made in the course of business
must be shown to have been contemporaneous ; this is not required
by the present section, though of course such entries would ordinarily
be so.
As to the admissibility and effect of entries in books of account
and official records, whether the maker is dead or not, see post,
Sections 34 and 35.
Mr. Norton* observes with reference to this clause of the section.
" The principal points to bear in mind are the following. Though
the Act is silent as to them, Courts will probably act prudently in
abiding by the English decisions when the points arise." The points
thus referred to are
(i) the necessity that the entry should be by a person having
personal knowledge ;
(ii) that it should be contemporaneous ;
* Nor., 182,
Digitized by VjOOQIC
48 STATEMENTS BY PERSONS WHO CANNOT BE [CH. n,
CALLED AS WITNESSBa
(iii) that it should not be an entry of any collateral fact over
and above what it was the strict duty of the person entering it to
record.
As to these it is necessary to observe that, as these restrictions have
been advisedly omitted by the Legislature, Courts will, so far from
" acting prudently," be committing an illegality if they exclude evi-
dence on grounds not countenanced oy the law. Any evidence which
falls witlun the terms of the present section is admissible.
(3) Illustrations {e) and (fj are specimens of admissions against
interest : in (e) because the agent admitted to A that he held moneys,
for which he was bound to account to him, in (fJ because the clergy-
man's statement would have exposed him to a criminal prosecution.
The English case of Ivat v. Finch, Taunt, 141, exemplifies the same
rule. This was an action of trespass for taking three mares, the
property of the plaintiflT. The defendant, who was lord of the manor,
justified under a heriot custom ; and the sole question between the
parties was, whether one Alice Watson, the tenant, was possessed of
the mares at the time of her death. The plaintiff contended that she
had given them to him some time before, and tendered in evidence
her declarations to that effect. Her declaration was admitted by the
appellate court as having been against her interest. — TayL, § 717.
The English Courts have differed as to whether an entry by a per-
son, acknowledging the pa3rment of money to himself can be regarded
as against his interest, when the entry is the only evidence of the
charge of which it shows the subsequent liquidation. Thus it was
questioned whether a receipt by a Carpenter of money paid for repairs
would be considered as against his interest when the Bill was the
only evidence of the demand. This refinement is met by the pro-
vision of clause (2) that a memorandum of receipt given as the course
of business is always admissible.
A statement charging a person with the receipt of money does not
cease to be against his interest although it forms part of a general
debtor and creditor account, the balance of which is in favor of the
receiver. — JRowe v. Brenton, ZM.dc R,, 267.
An entry of moneys received for a third person need not show for
whom they were received, if it can be proved aliunde that they were
received for a third person. — Ihid,
The provision rendering relevant any statement, which would have
exposed a man to criminal prosecution, is a departure from the Eng-
lish Law. The admissibility of such statements was discussed in the
" Sussex Peerage case," and it was ruled by Lord Lyndhurst that
they were inadmissible.— 11 CL andFinl, 110.
In the English Courts a distinction is made as to the effects of
entries in the course of business, and statements against interest : the
latter are admitted as proof of independent matters, which, though
forming partK)f the entry, are not in themselves against the interest
of the dechirant, as e. a,, an entry by an accoucheur of payment for
delivering a child is admissible to prove the date of the child's birth :
but with regard to entries in the course of business it has been held
that " whatever effect may be due to an entiy made in the course of
office, reporting facts necessary to the performance of a duty, the
statement of other circumstances, however naturally they may be
Digitized by VjOOQIC
SEC. 32.] STATEMENTS BY PERSONS WHO CANNOT BE 49
CALLED AS WITNESSES.
thought to find a place in the narrative, is no proof of those circum-
stB,nces"— Chambers v. Bemascorty 1 C, M. dh K, 368. This distinc-
tion would appear not to be retained in the present section : any-
thing contained in a statement which could be shown to have been
made in the ordinary course of business would, it is conceived, be
admissible in the same way as anything contained in a statement
against interest.
In order that a statement should be deemed to have been " made"
by a person it will not, it is apprehended, be necessary to show that
it was actually written by him, if it can be, shown to have been
written under his direction, or to have been superintended and adopted
by him. The English law on the subject i& thus described by
Mr. Taylor ; —
"To render accounts admissible as the declarations of. a deceased
person charging himself, it is not necessary that they should be in his
handwriting, and should bear his si^ature ; but they will be received
in evidence, if they were written by him either wholly, or in part, though
they were not signed or if they were signed by him though they were
written by a stranger. Neither can any objection be raised to their ad-
mission, though they were neither written nor signed by the deceased,
if either direct proof can be furnished that they were written by his
authorised agent, or if that fact can be indirectly established, as for
instance, by showing that the deceased subsequently adopted the accounts
as his own and delivered them in at an audit; nor does it signify in
such a case, whether the party who actually wrote the accounts be alive
or dead at the time of the trial, though in the former event, his non-
production may be matter of observation to the Jury, But if no proof
can be given that the account was either written, or signed, or authorised,
or adopted, by the deceased person made chargeable thereby, it cannot
be received."— T'ai/?., § 615.
(4) The term "interest" here does not mean that which is in-
teresting from gratif j;ing curiosity or a lov6 of information or amuse-
ment, but that in which a class of the community have a pecuniary
interest, by which their legal rights or liabilities are affected. The
admissibility of the declarations of deceased persons in such cases is
sanctioned, "because these rights and liabilities are generally of
ancient and obscure origin, and may be acted upon only at distant
intervals of time ; because direct proof of their existence therefore ought
not to be required ; because in local matters in which the community
are interested all persons living in the neighbourhood are likely to be
conversant ; because common rights and liabilities being naturally
talked of in public, what is dropped in conversation respecting them
may be presumed to be true; Decause conflicting interests would
lead to contradiction from others if the statement were false ; and
thus a trustworthy reputation may arise from the concurrence of
many parties unconnected with each other, who are all interested in
investigating the subj ect. But the relaxation has not been, and ought
not to be, extended to questions relating to matters of mere private
interest, for respecting these direct proof may be given, and no trust-
worthy reputation is likely to a.nse, —Lord Campbell in E. v. Inhabi-
tants of Bedfordshire^ Tayl,^ § 544.
(5) This does away with a distinction known to English Law
between matters of public interest, i, c, affecting the entire commu-
nity, and matters of general interest affecting oxily some section of it.
Digitized by VjOOQIC
I
50 STATEMENTS BY PERSONS WHO CANNOT BE [CH. 11,
CALLED AS WITNESSES.
In the former case evidence of reportation might be received /ro»e
any one, in the latter some connection with the place or subject has
to be proved. By the present law it will be necessary in every case
alike to show that the circumstances of the person, whose statement
is to be proved, were such that (not that he had but that) he would
have been likely to have competent knowledge of the right, custom
or matter, if it existed.
(6) In order that a statement should be admissible under this clause,
it must have been made before aiiy controversy as to the matter had
arisen. The same provision is made, though in slightly different
terms, as to statements admissible under Clauses (5) and (6). This is
in accordance with the rule of English Law. " No man," says Taylor,
** can be presumed to be indifferent in regard to matters in actual
controversy : for when the contest has begun, people generally take
part on tfee one side or the other : their minds are in a state of
ferment, and, if they are disposed to speak the truth are seen by
them through a false medium. To avoid, therefore, the mischiefs
which would otherwise result all exparte decisions, even those upon
oath, are exduded, if they can be referred to a date subsequent to
the beginning of the controversy.— :2^ay^., § 563. The controversy, how-
ever, must have been as to the right, custom or matter under inquiry ;
and therefore the mere fact of a controversy between the parties,
if was not regarding the matter in question, will not operate to
exclude the statement. Nor ^vill such a statement be inadmissible
on the ground that it was made with a view to avoid future contro-
versy : or with the direct intention of supporting the declarant's
title, or because the declarant stood, or believed that he stood, in the
same legal position as the person by whom the statement is adduced.
—TayL, § 566.
(7) According to English law a certain degree of relationship is
necessary in order to make such statements admissible, and state-
ments of illegitimate children, accordingly, have been rejected.
Under the present section the existence of any special means of know-
ledge on the part of the person making the statement will render it
admissible.
(8) See Note (6).
(9) There is a question in the English Courts how far a pedigree,
purporting to have been compiled, eitner wholly or in part, from regis-
ters and other documents, which are not shown to have been lost, is
admissible. In the case of Davies v. Lowndes, a Welsh pedigree,
proved to be in the handwriting of one of the ancestors of the plain-
tiff, was produced from proper custody, but had at its close a memo-
randum to the following effect " collected from Parish Registers, Wills,
Monumental Inscriptions, Family Records, <fec." This was tendered
as evidence of the relationship of persons living at the time when the
document was framed but was rejected by the Court of Common Pleas
on the ground that it bore on its face a certificate that it was only
secondary evidence of existing originals, the absence of which was
not accounted for. It was afterwards however decided by the Ex-
chequer Chamber that the document was admissible, so far, at any
rate, as it recorded facts which the maker might be presumed to have
learnt from his personal knowledge of the persons therein described
as relations, or from information received by him from some deceased
Digitized by VjOOQIC
SEC. 33.] STATEMENTS BY PERSONS WHO CANNOT BE 51
CALLED AS WITNESSES.
members of what the latter knew, or heard from other members who
lived before his time. — Davies v. Limndes, 7 Scott, N, J?., 211. It is
apprehended that under the present section, if the document could be
deemed " a family pedigree,'' any statement in it would be admis-
sible, notwithstanding any memorandum as to the sources from which
it was compiled. As to evidence, admissible for the purpose of con-
tradicting or corroborating a statement admissible under this section,
or of impeaching or confirming the credit of the person making it, see
post, Section 158.
(10) See Note (6).
(11) There are transactions by which a right or custom in ques-
tion was created, claimed, modified, recognized, asserted or denied,
or which are inconsistent with the existence of any such right or
custom. The effect of this clause is that a recital or other statement
of a relevant fact, contained in any document admissible under Sec-
tion 13, would be itself relevant, if the party making the statement
were dead or non-producible.
(12) Illustration {n) gives an instance of the sort of cases for
which this clause is intended to provide. The object often is to ascer-
tain not so much the feelings or impressions of individuals as the
general feeling or impression of a crowd or other public body. This
is to be gathered from the expressions iised by individuals forming
the crowd, and evidence of such expressions is admissible, though it
is often impossible to call the individuals themselves as witnesses.]
33. Evidence given by a witness in a judicial pro-
ceeding/i) or before any person author-
Evidence in a .J , °' , j.xl'x' 1 j.^
former judicial iscd by law to take it, IS relevant for
procee^ng when \^q purpOSO of proviug, in a SubsC-
relevant. f • i* • i j* • ^ a
quent judicial proceeding, or in a later
stage of the same judicial proceeding, the truth of the
facts which it states, when the witness is dead or
cannot be found, or is incapable of giving evidence,
or is kept out of the way by the adverse party, or
if his presence cannot be obtained without an amount
of delay or expense which, under the circumstances
of the case, the Court considers unreasonable r^^)
I^rovided
that the proceeding was between the same parties^^)
or their representatives in interest ;
that the adverse party in the first proceeding had
the right and opportunity to cross-examine ;
that the questioaS in issue were substantially the
sameW in the first aS in the second proceeding.
Digitized by VjOOQIC
52 STATEMENTS BY PERSONS WHO CANNOT BE [CH. H,
CALLED AS WITNESSES.
Explanation. — A criminal trial or enquiry shall be
deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section.
[ (1) This section applies only where a witness is absent : when he
is present, his evidence m a former judicial proceeding may always be
used to corroborate or contradict him. See post, Sections 155, Clause
(3), and 157 : and, if the witness be a party to the suit, his statements
in former judicial proceedings will often be relevant against him as
admission. The proceeding must have been a judicial one. Mr.
Norton, in observing, that * it is not necessary that the evidence should
be given in a judicial proceeding'* appears to have over-looked the
wording of the section. Such an exten3ive meaning, however, is
given to the phrase "judicial proceeding'' that but few statements
can be excluded. See Cr. P. C, Section 4.
A statement contained in an affidavit, relative to a pending suit,
would, clearly, be made in a judicial proceeding.
(2) The provisions of the section are less strict than the English
Law, which will not, in criminal cases, admits a former deposition of a
witness on mere proof that he cannot be found after diligent search,
TayL, § 442 ; nor even if it be shown that, being a foreigner, he has
left the country without any intention to defeat justice. Under the
present section, if either the witness cannot be found, or cannot be
produced without unreasonable delay or expense, his deposition will,
subject to the provisoes of the section, be admissible.
(3) The same parties, t, c, the same in interest not in mere form ;
the parties need not be absolutely identical ; the plaintiff in the one
case may be the defendant in the other ; and there may have been a
plurality of parties in the one case and not in the other ; as e. g.,
evidence ^ven in a suit brought by A and others against B womd
be admissible in a subsequent suit brought bv B against A alone the
subject-matter of both suits being substantially the same. — Wright v.
TathaTTi, 1 A. and -S'., 3.
(4) Thus if in a dispute respecting lands any fact were to come
directly in issue, the evidence will be admissive between the same
parties or their representatives to prove the same point in a dispute
about other lands. — Doe v. Foster, 1 A, and K, 791.
As to the mode of contradicting or corroborating statements rele-
vant under this section, or of impeaching or confirming the credit of
the person by whom the statement was made, see post, Section 158.
There is one important class of cases in which statements in a
previous judicial proceeding are admissible without these conditions.
By Section 249 of the C. P. C, it is provided that in trials before a
High Court or Court of Session the evidence of a witness made at
the enquiry before the Committing Magistrate may be referred to by
the Court, and the judgment may be grounded upon it, although the
witness at the trial makes statements mconsistent therewith.
When British subjects are being tried under Section 9 of the
Foreign Jurisdiction and Extradition Act, XI of 1872, copies of
depositions made or exhibits produced before the Political Agent of
* Nor. , 202.
Digitized by VjOOQIC
SEa 34 — 35.] statements made under special 5S
CIRCUMSTANCES.
the State, in which the offence is alleged to have been committed,
may be received in certain cases, Section 10 ; and so in enquiries
ordered by Government under Section 14.]
Statements made under special circumstances.
34. Entries in boolis of account,(i) regularly liept
Entries in books ^^ *^^ ^^^^^e of business, are relevant
of account when whenever they refer to a matter into
relevant. ^j^j^j^ ^j^^ Q^^^^ j^^ ^^ inquire, but
such statements shall not alone be sufficient evidence
to charge any person with liability.^)
Illustration,
A sues B for Rupees 1,000 and shows entries in his account books
showing B to be indebted to him to this amount. The entries are
rdevant, but are not sufl&cient without other evidence to prove the
debt
[(1) Under the English Common Law a party cannot prove, in his
own behalf, an entry in his books made by himself. The present section
is a reproduction of the Roman Law, under which the production of a
merchant's or tradesman's book of accounts, regularly and fairly kept
in the usual manner was deemed presumptive evidence f semi-plena
probatio) of the justice of his claim ; and in such cases, the supple-
tory oatn of the party (juramentum mppletivumj was admitted to
make up the plena probatio necessary to a decree ill his favour. — Tayl.,
§ 642. A party may, *under this section^ corroborate other evidence
of a debt being due to him by entries, whether by himself ^r another,
in his own books, provided the books have been regularly kept in the
course of business.
When a Company under Act X of 1866 is being wound up, the
books, accounts and documents of the Company and the liquidators
are, as between the contributories, primdfacie evidenice of 2^1 things
purporting to be recorded therein. Act a of 1866, Section 170.
(2) This is in accordance with the doctrine laid down in Eai Sri
Ktshen v. Eai Hari KiskeUj 5 Af. I. A,, 432, Where it was held that
'' the production of a banker's books with the entries of the items
constituting the demand, kept according to the established custom of
Mahajans in India, is not o/ifeeZ/" sufficient evidence to establish such
a claim." Backed, however, by the statements of the creditor or
other credible testimony, they would be sufficient, as for instance, in
Devarha Doss v. Baboo Jankee Dass, 6 M. I. A,, 88, where the admis-
sion of the correctness by the Defendant was held sufficient evidence
to» dispense with other evidence, independent of the Plaintiflf's Account
Bjooks, as to die existence of a debt.]
35. An entry in any publi(; dr other official book,
jntrym public register, or record, stating a fact in
C7^' "**^® ^ issue or relevant fact and made by a
Shity^j^Tinedby public Servant in the discharge of his
n
Digitized by VjOOQIC
54 STATEMENTS MADE UNDER SPECIAL [CH. II,
CIRCUMSTANCES.
law, when reie- official duty, OT bjT any other person
in performance of a duty specially
enjoined by the law of the country in which such
book, register, or record is kept, is itself a relevant
fact.
[Under this section entries made by Settlement officers and Village
Officials in the Record of Rights : records by a Registrar of Births,
Deaths and Marriages : minutes, <fec., of meetings where such minutes
are directed by law to be kept, and other like documents are relevant
when the matters to which they refer are in dispute.
As to the weight to be given to ish-navisi i)apers as against satis-
factory oral evidence of uninterrupted possession, see William Fur-
guesson v. Dwarhansthe Singh and another^ 8 B. L, i?., P. C, 505.
By Section 61 of the Indian Companies' Act, 1866, a copy of the
report of Inspectors, appointed under the Act, authenticated by the
seal of the Company, is admissible as evidence of their opinion.
Such entries are frequently conclusive proof of the facts recorded.
Thus the certificate of a district court granted under Section 4 of Act
XXVII of 1860 is conclusive proof of the representative title of the
person to whom it is granted : and a certificate, granted under Part
VI of the Indian Chnstian Marriage Act, 1872, is conclusive proof of
the Marriage having been performed.]
36. Statements of facts in issue or relevant facts,
made in published maps or chaHs
Maps and plans generally offered for public sale, or in
when relevant. ° •'i iiJiJi
maps or plans made under the autho-
rity of Government, as to matters usually repre-
sented or stated in such maps, charts or plans, are
themselves relevant facts.
[As to the presumption in case of Maps, see Section 83.]
37. "When the Court has to form an opinion as
to the existence of any fact of a public
fa^t^ofSic^nt"? nature, any statement of it, made in a
ture contained in rccital Contained in any Act of Parlia-
Sation of Go", mcut, or in any Act of the Governor
vernment, when General of India in Council, or of the
re evan . Govcmors in Couucil of Madras or
Bombay, or of the Lieutenant-Governor in Council
of Bengal, or in a notification of the Government
appearing in the Gazette of India, or in the Gazette
of any Local Government, or in any printed paper
purporting to be the London Gazette or the Govern-^
Digitized by VjOOQIC
SEC. 36 — 39.] HOW MUCH OF A STATEMENT IS TO 55
BE PROVED.
ment Gazette of any colony gr possession of the
Queen, is a relevant fact.
[By 'Section 8 of Act I of 1867 (M), a recital in any Act of the
Governor in Conncil is primd facie evidence of the fact recited. The
necessity for this provision is removed by Section 114 which would
justify a Court in presuming the truth of any fact recited in an Act
either of the Supreme or Local Councils.
As to the effect of a notification of a cession of territory, see post,
Section 113.]
38. When the Court has to form an opinion as
to a law of any country, any statement
statements in of quqI^ j^w Contained in a book pur-
*^ ° ' porting to be printed or published
under the authority of the Government of such
country and to contain any such law, and any report
of a ruling of the Courts of such country contained ""^---^
in a book purporting to be a report of such rulings, "^
is relevant.
[As to other modes of proving the law of a country, see Section 45
and note thereon. As to the presumption in the case of such books,
see Section 84.]
How MUCH OF A Statement is to be proved.
39. When any statement of which evidence is
sriven forms part of a longer statement.
What evidence ° p ^ j,' j. r -
to be given when OT ot a COUVersatlOU Or part of an ISO-
Statement forms lated document, or is contained in a
part of a conver- •, ^i_*i,i» i/*!!
sation,document, document which torms part of a book,
book, or series of pr of a Connected series of letters or
letters 01 papers. •■•, -i n i • /*
papers, evidence shall be given of so
much and no more of the statement, conversation,
document, book, or series of letters or papers, as the
Court considers necessary in that particular case to
the full understanding of the nature and effect of the
statement, and of the circumstances under which it
was made.
[The old rule of Common law was that when one party had put in
an extract from a document, or asked a question as to a particular
statement in a conversation, the other party was entitled to have the
whole document read, or to prove anything else that was said in the
same conversation.
Digitized by VjOOQIC
56 JUDGMENTS OF COURTS OF JUSTICE [CH. II,
WHEN RELEVANT.
The inconvenience and injustice, however, in which such a prac-
tice would have resulted, led to the rule being greatly narrowed by
the Courts in its application : and the Englisn Law is now to tlw
same efEect as the present section. It is easy to see the necessity for
the rule of admitting only such other portions of any statement, con-
versation, document, &c., as are necessary to explain the statement
E roved : if it were not for such a rule the mere fact of a witness
eing asked a question about a conversation might be made the
pretext for getting in various statements which obviously ought not
to be admissible. Xake for instance a case in which the plaintiff
sued the defendant for having maliciously arrested him for debt, the
plaintiff contending that the advance had been a gift and not a loan ;
a witness for the plaintiff acknowledged on cross-examination, that
he had heard the plaintiff admit on oath, that he had repeatedly been
insolvent, and had been remanded by the Court ; whereupon he was
asked in re-examination whether the plaintiff had not, on the same
occasion, expressly stated that the money was given, ana nqt lent. It
is obvious, that, though both these statements were made in the
course of the same conversation, the one was in no way necessary to
explain the other ; and that the plaintiff's statement that the advance
was a gift and not a loan, being an admission, could not properly be
proved by him or on his behalf. See Section 21. — Prince v. SamOy
1 A.<Ss E., 627.
With regard to letters, it has been held that a party may put in
such as were written by his opponent, without producing those to
which they were answers, or calling for their production : because, in
such case, the letters, to which those put in were answers, are in the
adversary's hands, and he may produce them, if he thinks them neces-
sary to explain the transaction. — TayL, § 663.]
Judgments of Courts of Justice when relevant.
40. The existence of any judgment, order or
. decree, which by law prevents any
i^entrreievantto Court from taking cognizance of a
ortriaf ^^^^ ^"^* ^^^* ^^ holding a trial is a relevant
fact when the question is whether
such Court ought to take cognizance of such suit, or
to hold such trial.
[This section is framed with reference to the provisions of Section 2
of the Code of Civil Procedure, under which the Courts are debarred
from taking cognizance of any suit, brought on a cause of action which
has already been disposed of by a competent Court between the same
parties or those under whom they claim ; and to the corresponding
enactment in the Code of Criminal Procedure, Section 460, that a
previous conviction or acquittal shall be a bar to any further proceed-
ings in respect of the same oflfence. So also the order of an Insolvency
Court might be a bar to an ordinary civil suit ; or an order for wind-
ing up a Company under Act X of 1866 might be pleaded under Section
108, or 167 to any proceedings against the Company. Whenever any
Digitized by VjOOQIC
SEC. 40] JUDGMENTS WHEN RELEVANT. &4
such plea is to be urged, the judgment, order or decree, on which it is
grounded, becomes relevant.
The extent, to which Section 2 of the C. P. C. operates to bar sub-
sequent proceedings, has been much discussed in the Courts, and its
provisions will, it may be hoped, be simplified, elucidated, and render-
ed more complete in the Bill now in preparation to amend the Code
of Civil Procedure. Pending the passing of that Bill it was con-
sidered undesirable to deal rurther with the subject, or to supple-
ment the defects of Section 2 by provisions as to matters, which
that section would continue mainly to regulate, and which would,
accordingly, be more conveniently considered when it was under
amendment. See note at p. 21 of the Introduction. Meanwhile the
operation of section two is, generally, as follows. Taken along with
the provision in section seven that " every suit shall include the whole
of the claim arising out ofiheoauK of a/stion^'^ it frequently has the
effect barring proceedings as to matters other than those actually
litigated on the former occasion. The English Law on the subject
has been thus fiummarized : —
"From the variety of cases relative to judgments being given in evi-
dence in civil suits, these two deductions seem to follow as generally true :
first, that the judgment of a Conrt of concurrent jurisdiction, directly upon
the point, is, as a plea, a bar, or as evidence, conclusive, between the same
parties, upon the same matter directly in question in another Court ;
secondlv, that a judgment of a Court of exclusive jurisdiction, directly
upon tine point, is in like manner, conclusive upon the same matter,
between the same parties, coming incidentally in question in anotiier
Court, for a different purpose. But neither the judgment of a concurrent
or exclusive jurisdiction is evidence of an^r matter which came coUaterally
in question, though within their jurisdiction, nor of any matter inciden-
tally cognizable, nor of any matter to be inferred by argument from the
judgment." — Duchess of Kingston* a Case, 2 Sm, L. C, 680.
But facts, which are essential to or assumed by a former judgment,
may, it appears, be contested in a subsequent suit between the same
parties, so long as the actual cause of action decided in the former
decree be not re-contested. " It is, I think, to be collected," said
Knight Bruce, V. C,
'*that the rule against re-acitating matter adjudicated is subject gene-
rally to this restriction, that, however essential the estabhshment of par-
ticular facts may be to the soundness of a judicial decision, however it
may proceed on them as established, and however binding and conclusive
the decision may, as to its immediate and direct object, be, those facts are
not at all necessarily established conclusively between the parties, and
that either may again litigate them for any other purpose as to which they
may come in question, provided the immediate subject of the decision be
not attempted to be withdrawn from its operation so as to defeat its direct
object. This limitation of the rule appears, generally speaking to be con-
sistent with reason and convenience, and not opposed to authority." —
Barrs v. Jackson, 1 To, and CoL, 597.
It is, moreover, necessary, in order to bar subsequent proceedings,
not only that there i^ould have been a suit as to the same cause of
action between the same parties, but that it should have been heard
and determined. There must have been a decision on the merits.
"To conclude a plaintiff by a plea of ^ res judicata^* it is not sufficient
to show that there was a former suit between the same parties for the
H
Digitized by VjOOQIC
58 JUDGMENTS WHEN RELEVANT^ [CH. 11,
same matter upon the same cause of action. It is necessary also to show
that there was a decision, finally granting or withholding the relief sought.
Kes Judicata dicitur quse finem contraversiamm pronnntitione JucUcis
accepit, quod vel condemnatione vel absolutione contingit ;" and, therefore,
where a suit had been dismissed as premature on the ground that a question
as to mesne profits, which formed part of the claim, was still pending in
an inquiry ordered by the High Court, it was held that the matter was not
res judicata. — Saikappa Chetti v. Rani Kalandapun NachyaVf 3 M. H.
a R., 84. '
To give eflfect to the plea of res judicata^ the court must be satisfied
that t£e ground of legal right, on which the plaintiff sues, was a point
raised and opened for decision in the former suit, and that it was
finally dealt with by the judgment and decree therein."— CTc^ayia
Taver and Katama Nachyar aiid another, 1 M, H. C. i?., 321.
But a point which did fairly form a portion of a former cause of
action will not be allowed to be raised in a subsequent action merely
because the i)laintiff failed to raise it in the first action. " A party is
bound to bring forward his whole case in respect of the matter in
litigation, and open to him upon the points for decision in the suit.
He cannot abstain from relying upon, nor abandon a ground of claim,
which is in question and proper for consideration and decision in the
suit, and afterwards make it a cause of a fresh suit in respect of the
same subject-matter.'' — Ibid,
A former judgment by a Court of competent jurisdiction, upon the
same cause of action, is conclusive between the same parties in a sub-
sequent suit brought in another Court, notwithstanding the pendency
of an appeal against it : but the Judge passing the decree in the sub-
sequent suit may, on application made to him, and security being
given, stay the execution of it, until the appeal in the former suit is
decided ; and may, if the former decree is reversed, entertain an
application for review of his own decision in the subsequent suit.-;— J5ttZ-
kiram Nathuram v. The Guzerat Mercantile Association, Limited,
4£om.B,B.{A.a\Sl,
If the parties are not the same or the representatives of the same,
the rule will not apply. Thus, where plaintiff sued to raise an
attachment placed on a certain house, but failed, and the decision of
the lower Court was confirmed in appeal : the house was then sold ;
Plaintiff sued the purchaser for possession. It was held that he was
not precluded by the existing decree from bringing his suit against
the purchaser inasmuch as the judgment was not a judgment in rem,
neither was the purchaser a party to it. — 5 Bovnh, H, C, 201.
A judgment recovered against one or more of several joint wrong-
doers or joint contractors, even without execution, will be a bar
to a suit against another or others of them. " If there be a breach
of contract or wrong done, or any other cause of action, by one
against the other, and judgment be recovered in a Court of
Record, the judgment is a bar to the original cause of action, because
it is thereby reduced to a certainty, and the object of the suit
attained so far as it can be at that stage, and it would be useless
and vexatious to subject the defendant to another suit for the
purpose of obtaining the same result. Hence the legal maxim
transit in rem jiidicatam. The cause of action is changed into
Digitized by VjOOQIC
SEC. 41.] JUDGMENTS WHEN RELEVANT. 59
matter of record, which is of a higher nature, and the inferior
remedy is merged in the higher. Ana this appears to be equally true
where there is out one cause of action, whether it be against a single
person or many ; the judgment of a Court of Record changes tne
nature of that cause of action and prevents its being the subject of
another suit j and the cause of action being single, cannot afterwards
be divided into two.'' — King v. Hoare, 13 M, dh W., 494. The
doctrine laid down in B. v. Hoare was considered and affirmed in
BriTismead v. Harrison, L. R., 6 (7. P., 586, but it was further held
that judgment recovered in trover without satisfaction did not have
the eflfect of vesting the property in the goods in the defendant.
In order to pass the property, the decree must have been executed.
No express provision is made in Section 2 of the Civil Procedure
Code for the effect of. foreign judgments. It has been held that a
judgment recovered in the Court of an Independent Sovereign, and
not impeachable on the ground of fraud or want of jurisdiction or
impropriety of procedure, is a bar to a second suit in a British Court.
— Moadao Beehee v. Ram Maniko Dey, 6 Suth, W^, i?., Civ. Ref., 31.
In England the Master of the Rolls has expressed his opinion that
a foreign judgment, sought to be enforced in another country, is
examinable for the following purposes only : 1st, for the purpose of
showing that the defendant abroad had no notice of the suit : 2nd,
that it was obtained by fraud : 3rd, that the Court, which pro-
nounced it, had no jurisdiction : 4th, that there was error on the
face of the judgment, i, e., error sufficient to show that the Court had
come to an erroneous conclusion of law or fact : 5th, that it was con-
trary to the law which it professed to a.dmini&teT.—Reimer v. Druce,
23 Beav,, 145. The matter must, however, be regarded as amongst
those for which at present no express provision is made by the law of
this countiy.
As to the mode in which judgments, <fec.j are to be proved, see
Sections 76 and 77. As to the presumption raised in the case of any
record or memorandum of evidence, see Section 80, and, in the case
of a judicial record of a foreign country, Section 86.]
41. A final judgment, order or decree of a com-
Judgments in P^^^^^^ ^ourt, iu the exercise of pro-
probate, &c., ju- bate, matrimonial, Admiralty or insol-
nsdiction. vency jurisdiction, which confers upon
or takes away from any person any legal character,
or which declares any person to be entitled to any
such character, or to be entitled to any specific thing,
not as against any specified person but absolutely,
is relevant when the existence of any such legal
character, or the title of any such person to any
such thing, is relevant.
Such judgment, order, or decree is conclusive proof
Digitized by VjOOQIC
60 JUDGMENTS WHEN BELEVANT. [CH. II,
that any legal character which it confers accrued
at the time when such judgment, order, or decree
came into operation ;
that any legal character, to which it declares any
such person to be entitled, accrued to that person at
the time when such judgment [*order or decree]
declares it to have accrued to that person ;
that any legal character which it takes away from
any such person ceased at the time from which such
judgment [*order or decree] declared that it had
ceased or should cease ;
and that anything to which it declares any person
to be so entitled was the property of that person at
the time from which such judgment [^order or
decree] declares that it had been or should be his
property.
J Provision is here made for the much debated subject of the
udgment in rem" a phrase which has been used in English Courts,
<not always with a very accurate appreciation of its history and
meaning,) to denote certam judgments which are conclusive, not only
as against the parties to them, but as against aU the world. As to
tiie matters about which such judgments could be pronounced, and
the Courts who were competent to pronounce them, the Judgments
of the Courts have exhibited some hesitation and contrariety of
opinion. Some judgments, declaratory of status, have been regarded
as judgments in rem and conclusive as against all the world, irres-
pective of the character of the proceedings in which they were ob-
tained and the tribunal by which they were delivered For instance
107.) Also Kunhya Lai v. Radha Chund : vii, Suth,, W, i?., 338 :
while in other cases this effect has been denied to them.
The history and theory of the judgment in rem was discussed
and elucidated by Holloway, J. in the case of Yarakalamma v.
AnnakoUa NaramTna, 1 M, Jff. C. R, 276. " The results," he says,
^ seem to be that the rule, which makes a judgment conclusive only,
" against the parties and those who claim under them, is subject to
^' certain exceptions, which are the offin)ring of positive law, and that
" the reasons for the exception may he generally stated to be, both
^ in English and Boman Law, that the nature of the proceedings,
'^ by which there is a fictitious (though not generally unjust
• These words are added by Act XVIII of 1872.
Digitized by VjOOQIC
SEC. 42.] JUDGMENTS WHEN RELEVANT. 61
" extension of parties) renders it proper to use the judgment against
" those not formallv parties." Under the present Act the only judg-
ments, to which all the world is thus supposed to be a party, and
which are universally conclusive, will be tnose passed by the Courts
and on the subjects specified in the section. Judgments, declaratory .
of status, passed by a Court exercising any other jurisdiction, such
as ordinary decrees declaratory of adoption or le^timacy, will not be
operative except against tiie parties to the judgment and their
representatives, as provided by Section 40.
So far as regards the effects of a grant of probate of Hindu
Wills, this is an alteration of the law, as previously laid down by the
Courts. In Sharo Bibi v. BcUdeo Das^ I B, L, i?., 0. ./., 24, Norman,
J., ruled that grant of probate of a Will m the caaie of Hindus conferred
no title on an executor, but that he derives his title from the Will
itself, and that probate was evidence of his title only so far as a
decree of the Court granting it would be, w., between the parties
and those going to the suit in which the decree was made. Irobate
is now evidence of the exe^tor's titie against all the world ^ but it
must be remembered that a Hindu executor has not necessarily the
same powers as one under English Law, and that he is not empowered
to alienate except as directed b^ the Will or as necessitated by
the case. — Srimate Jaykcdi Bibi v. Shibnath Ghatteriee, 2 B, Z. B,,
O.J,, I.
It must be remembered, moreover, that by Sections 187 and 190 of
the Indian Succession Act, 1865, no right as executor or legatee under
a Will or to any part of the property of an intestate can be establi^ed
in any .Court of Justice unless a Court of competent jurisdiction
tuitkin the Province^ has granted probate or letters of Administration.
The holder of a power of attorney, therefore, from a person who has
obtained probate without the province would not be entitled to
realize assets of the estate.]
42. Judgments, orders, or decrees other than
Judgments re- those mentioned in section forty-one
lating to pubUc are relevant if they relate to matters
matters. ^£ ^ public nature relevant to the
inquiry; but such judgments, orders, or decrees
are not conclusive proof of that which they state.
Illustration,
A sues B for trespass on his land. B alleges the existence of a
public right of way over the land which A denies.
The existence of a decree in favour of the defendant, in a suit by
A against C for a trespass on the same land, in which C allied the
existence of the same nght of way, is relevant, but it is not conclusive
proof that the right of way exists.
[This corresponds wiUi the English Law on the point Such judg-
ments are, in fact, admissible as evidence of reputation on the mat-
ters in dispute. — TayL § 1496. Of course if they fall within the
scope of Section forty, tney are conclusive.]
Digitized by VjOOQIC
62 JUDGMENTS WHEN RELEVANT. [CH. H,
43. Judgments, orders, or decrees, other than
What judg- i^ose mentioned in sections forty,
ments, &c., not forty-onc, and forty-two,(i) are irrele-
reievant. vant, unless the existence of such
judgment, order, or decree, is a fact in issue, or is
relevant under some other provision of this Act.^^)
Illustrations.
(a.) A and B separately sue C for a libel which reflects upon each
of them. C in each case says, that the matter alleged to be libellous
is true, and the circumstances are such that it is probably true in
each case, or in neither.
A obtains a decree against C for damages on the ground that C
failed to make out his justification.
The fact is irrelevant as between B and C.
(6.) A prosecutes B for adultery with C, A's wife.
B denies that C is A's wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A's
life-time. C says that she never was B's wife. (3)
The judgment against B is irrelevant as against C.
(c.) A prosecutes B for stealing a cow from him. B is convicted.
A, afterwards, sues C for the cow, which B bad sold to him before
his conviction. As between A and C, the judgment against B is irre-
levant.
{d.) A has obtained a decree for the possession of land against B.
C, B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a
crime.
[ (1) By Section 138 of the Civil Procedure Code a Civil Court
may, of its own accord or on application of any of the parties, send
for the record of any other suit or case or any other official papers
and inspect the same when the inspection of such record or papers
appears likely to elucidate the facts of the case and promote the ends
of Justice.
Though a Court might inspect any such document under the circum-
stances named, it could not of course make use of it or of any fact
contained in it for the purposes of the judgment, except such fact
were relevant under the provisions of this Chapter.
In R. A. No. 116 of 1870, 6 M. H. C. R, 425, the Judges considered
the doctrine, laid down in the English Courts " that a conviction by
a Magistrate, who has jurisdiction over the subject-matter is, if no
defects appear on the face of it, conclusive evidence of the facts stated
in it. — Bnttain v. Kinnaird, lB,<lc J5., 482. This point, which is now
provided for in England by express enactment, 11 & 12 Vic, c. 44, S. 2,
might be of great importance in proceedings against Magistrates
governed by Act XVIII of 1850. Scotland, C. J., however, considered
that the English rulings had not established the absolute conclusive-
Digitized by VjOOQIC
SEC. 43—45.] OPINIONS WHEN RELEVANT. 63
ness of the findings in a Magistrate's conviction or order, and that at
any rate the doctrine had never been enforced in this country. Under
the present Act there can, it would seem, be no question that a Magis-
trate's order, unreversed, would not be conclusive of the facts stated
therein as agaiust a party suing him in respect of such order.
(2) An example of this is given in Illustration (d). So also a judg-
ment may be relevant for proving a previous conviction agamst a
witness and so discrediting him. See post, S. 153.]
By Section 54 (post) the fact that an accused person has been pre-
viously convicted is relevant in a criminal proceeding. As to the
mode in which the previous conviction is, in such cases, to be proved,
see C. Cr. Pr., 326,
(3) This appears to be a clerical error. It should be " C says that
she never was A's wife/']
44. Any party to a suit or other proceeding
„ ' „ . may show that any judgment, order.
Fraud, collusion S i.-u-ii. j
and incompeten- or decree which IS relevant under sec-
cy of Court may ^iou forty, forty-ouc, or forty-two,
^^^^ ' and which has been proved by the
adverse party, was delivered by a Court not competent
to deliver it, or was obtained by fraud or collusion.
[This is somewhat wider than the English Law. In England a
stranger, against whom a judgment is offered in evidence, may always
avoid it by showing that it was obtained by fraud or collusion.
Whether an innocent party to the Judgment may prove in another
Court that it was obtained oy fraud is not equally clear, as it would
be in ids power to apply directly to the Court, which pronounced the
judgment, to vacate it ; but a guilty party would certainly not be
allowed to defeat a judgment by showing that he had practised an
imposition on the Court.— Tay^., § 1522.
This point does not appear to be provided for in the present section ;
the contingency, however, of a party to a judgment endeavoring to
avoid it by showing his own fraud is a somewhat remote one.]
Opinions of third Persons when relevant.
45. When the Court has to form an opinion
Opinions of ex. upou a poiut of foreign law,(i) or of
perts. science or art, (2) or as to identity of
handwriting, the opinions upon that point of per-
sons specially skilled in such foreign law, science or
art, [*or in questions as to identity of handwriting]
are relevant facts/^)
Such persons are called experts.
' ♦ Added by Act XVIII of 1872.
Digitized by VjOOQIC
64 OPINIONS WHEN RELEVANT. [CH. II,
Illustrations.
(a.) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison
by whicn A is supposed to have died, are relevant.
(6.) The question is, whether A, at the time of doing a certain act,
was, by reason of unsoundness of mind, incapable of knowing the
nature of the act, or that he was doing what was either wrong or con-
trary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such unsoundness of mind usually renders persons incapable of know-
ing the nature of the acts which they do, or of knowing th^t what
they do is either wrong or contrary to law, are relevant
(c.) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two documents
were written by the same person or by different persons, are relevant.
[ (1) " Foreign law" would, it is apprehended, include usages and
customs of a foreign country having the force of law. In England it
has been doubted whether on a point of Foreign Law the Court was
at liberty itself to consult foreign law books, except so far as they
have been introduced bjr counsel in their argument ; foreign laws and
customs must, it is considered, be proved by calling an official or pro-
fessional person to give an opinion about them : nor in England can
the law of a foreign country be proved even by a jurisconsult, if he
has acquired his knowledge of it solely from study at an university in
another country. Such a person's opinion would imder the present
Act be relevant as that of one specially skilled in the matter. But
it would not be essential to call him, as by Section 38 statements of
law in law books and reports are relevant ; by Section 56 the Court
may refer to any such book for information, and by Section 84 is to
presume any such book to be genuine.
(2) " Science or Art*' must be taken to include any branch of
learning, or anv application of means to an end, which requires a course
of previous habit or study in order to obtain a competent knowledge
of its nature. The expression would embrace special trades and
professions, e. §r., commercial men may be called to explain par-
ticular expressions in a letter on a commercial subject So also
the genuineness of a Postmark may be proved by the opinion of a
Clerk of the Post Office : so also the opinion of Military Officers
on a question of Military practice : of naturalists as to uie power
of fish to overcome obstacles in a stream ; of engineers as to the
effect of an embankment such as the one in question in choking
up a harbour, of a person, whose business it had frequently been to
estimate damages caused by the laying out of Railwa3rs, as to t^e
effect of laying out a Railway within a certain distance of a building
on its rental. It may sometimes be difficult to say whether a matter
involves " a point of science or art," and, consequently, whel^er the
opinions of experts upon it are relevant. There are conflicting de-
cisions, for instance, in the English Courts, as to whether the opinion
Digitized by VjOOQIC
SEC. 45.] OPINIONS WHEN RELEVANT. 65
of brokers as to what is a material concealment in effecting a policy,
or what is the duty of a broker under particular circumstances, can
be regarded as the opinion of experts. The test, under the present
section, would seem to be whether the point to be decided involves
special ac(^uaintance with a particular subject, or whether it is a '
mere question of legal or moral obligation about which one person is
as good a judge as another. Thus a skilled witness may oe asked
whether by the Eules of the Jockey Club a man may bet against his
own horse and then withdraw him, that being a question of the
science of racing : but he might not, it is apprehended, be asked his
opinion as to the abstract morality of that proceeding.
With respect to the admissibility in evidence of the opinion of a
medical man as to the state of mind of a prisoner when on his trial
for an alleged offence, the following question was proposed to the
English Judges by the House of Lords : *^ Can a medical man, con-
versant with the disease of insanity, who never saw the prisoner
previously to the trial, but who was present during the whole trial
and the examination of all the witnesses, be asked his opinion as to
the state of the prisoners' mind, at the time of the commission of the
alleged crime, or his opinion whether the prisoner was conscious, at
the time of doing the act, that he was acting contrary to law, or
whether he was labouring under any, and what, delusion at the
time r To the question thus proposed, the majority of the judges
returned the following answer, '* We think the meaical man, under
the circumstances supposed, cannot, in strictness, be asked his
opinion in the terms above stated, because each of those questions
involves the determination of the truth of the facts deposed to,
which it is for the jury to decide, and the questions are not mere
questions upon a matter of science, in which case such evidence is
suimissible. But where the facts admitted are not disputed, and the
question becomes substantially one of science only, it may be conve-
nient to aJlow the question to be put in that general form, though
the same cannot be insisted on as a matter of right." — McNaghten's
Case, 1 (7. d: K,, 156.
Under the present section the question might be thus put : " You
have heard the symptoms said to have exhibited by A : supposing a
person to exhibit those symptoms, what would be your opinion of his
mental condition T
By a person " specially skilled" is meant, it is submitted, any person
who, from his circumstances and employment, possesses exceptional
means of knowledge, has given the subject particular consideration,
and is more than ordinarily conversant with its details. A clerk, for
instance, whose business, amongst other things, it was to scrutinize
the handwriting of different people and to detect points of resem-
blance or variety, might eive an opinion on a question of handwriting,
although his *^ special skill'' was something short of that of .a first-
rate London expert. If he has any * special skill,' his opinion is
relevant : the degree in which he possesses such skill, and the conse-
quent value of ms evidence is, of course, matter for comment, but
the admissibility of his evidence does not depend upon it.
By Section 73, in order to ascertain the gjenuineness of a si^ature,
any proved signature ** may be compared with the one which is to be
proved :" it would be allowable, therefore, to put the documents into
Digitized by VjOOQIC
€6 OPINIONS WHEN RELEVANT. [CH. II,
the hands of a competent witness and desire him to indicate the
points of resemblance or variety. — Arbon v. Fussell, 9 Jur. N, S., 753.
(3) Of course in one sense all oral testimony as to things perceived
by the senses is an expression of opinion, a statement of the impres-
sion made on the senses by the thing perceived ; and when a witness
does not qualify the statement of the fact by saying that he is stating
his opinion about it, it is only because he feels very sure of his
opinion : — " I saw A coming along : he was drunk : he was a quarter
of a mile off : there were over a hundred people there" really means
*' I saw a person coming along as to whom the impression created on
my senses was that it was A : his appearance and demeanour were
those of a drunk person : the distance was in my opinion a quarter
of a mile : I estimate the crowd at over 100." Directly a witness
feels hesitation about the correctness of the impression produced on
his senses or the inference drawn by his mind from that impression,
he puts in such words as " to the best of my belief," ^. e., tms is the
impression left on my senses, but I will not swear that it may not have
been wrong.'* It is not, of course, intended to exclude evidence of
this description.
As to the mode in which an expert's opinion may be proved, see
Section 60.
As to proof of the Examination of Civil Surgeon and of the opinion
of the Chemical Examiner to Government in Criminal Cases, see
Cr.Pr.C.,323and325.]
46. Facts, not otherwise relevant, are relevant
Facts bearmg if . they support' or are inconsistent
upon opinions of with the opinions of experts, when
experts, g^^j^ opinions are relevant.
Illustrations,
(a.) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison,
exhibited certain symptoms which experts affirm or deny to be the
symptoms of that poison, is relevant.
(b.J The question is, whether an obstruction to a harbour is
caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects,
but where there were no such sea-walls, began to be obstructed at
about the same time, is relevant.
47. When the Court has to form an opinion as
Opinion as to to the persons by whom any docu-
handwriting, mont was Written or signed, the opi-
nion of any person acquainted with the handwriting
of the person by whom it is supposed to be written
or signed that it was or was not written or signed
by that person, is a relevant fact.
Digitized by VjOOQIC
SEC. 46 — 49.] OPINIONS WHEN RELEVANT. 67
Explanation, — A person is said to be acquainted
with the handwriting of another person when he
has seen that person write, or when he has received
documents purporting to be written by that person
in answer to documents written by himself or under
his authority and addressed to that person, or when,
in the ordinary course of business, documents pur-
porting to be written by that person have been
habitually submitted to him.
Ilhistration.
The question is, whether a given letter is in the handwriting of A,
a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to
A and received letters purporting to be written by him. C is B's
clerk, whose duty it was to examine and file B's correspondence. D
is B's broker, to whom B habitually submitted the letters purport-
ing to be written by A for the purpose of advising with him thereon.
The opinions of B, C, and D on the question whether the letter is
in the handwriting of A are relevant, though neither B, C, nor D
ever saw A write.
[There are three ways of proving handwriting provided by the Act,
viz., by an expert under Section 45, by a person acquainted with it
under the present section, and by comparison under Section 73.]
48. When the Court has to form an opinion as
to the existence of any general cus-
exl^&ofrigit torn or right, the opinions, as to the
or custom, when existence of such custom or right, of
relevant. persous who would be likely to know
of its existence if it existed, are relevant.
Explanation. — The expression - ^' general custom
or right" includes customs or rights, common to any
considerable class of persons.
lUustration,
The right of the villagers of a particular village to use the water of
a particular well is a general light within the meaning of this section.
[The opinions of persons, likely to know, about village rights to
pasturage, to use of ^aths, water-courses, or ferries, to collect fuel, to
use tanks and bathing ghats, mercantile usage and local customs,
would be relevant under this section.]
VL^^il^Ttnett 49. When the Court has to form
vrnt ^^^^ ^^^^' ^^ opinion as to —
Digitized by VjOOQIC
68 OPINIONS WHEN RELEVANT. [CH. II,
the usages and tenets of any body of men or family,
the constitution and government of any religious
or charitable foundation, or
the meaning of words or terms used in particular
districts or by particular classes of people/^)
the opinions of persons having special means of
knowledge thereon, are relevant facts.
[ (1) By Section 98, post^ evidence may be given, with reference to a
document, to show the meaning of ' technical, local and provincial
expressions, abbreviations and of words used in a peculiar sense.'
For tliis purpose the opinions of persons having special means of
knowledge on the subject would be the best evidence.]
50. When the Court has to form an opinion as
Opinion on reia. ^o the relationship of one person to
tionshipwhenre- another, the opiniou, expressed by
levant. couduct, as to the oxisteuce of such
relationship, of any person who, as a member of the
family or otherwise, has special means of knowledge
on the subject, is a relevant fact : Provided that
such opinion shall not be sufficient to prove a mar-
riage in proceedings under the Indian Divorce Act,
or in prosecutions under Section 494, 495, 497, or
498 of the Indian Penal Code.
Illustratiotis,
(a.) The question is, whether A and B were married.
The fact that they were usually received and treated by their friends
as husband and wife, is relevant.
(b.) The question is whether A was the legitimate son of B. The
fact that A was always treated as such members of the family, is
relevant,
[" Thus, in the Berkeley Peerage case, Sir James Mansfield remarked,
that, " if the father is proved to have brought up the party as his
legitimate son, this amounts to a daily assertion that the son is legiti-
mate." So, the concealment of the birth of a child from the husband,
—the subsequent treatment of such child by the person who, at the
time of its conception, was living in a state of adultery with the
mother,— and the fact that the chiM and its descendants assumed the
name of the adulterer, and had never been recognized in the family as
the legitimate offspring of the husband,^are circumstances that will
go far to rebut the presumption of legitimacy, which the law raises in
favor of the issue of a married woman.— Jay/., § 584. But considera-
tions such as these could not over-rule the conclusive presumption
provided in Section 112 (post) as to legitimacy.
Digitized by VjOOQIC
SEC. 50—54.] CHARACTER WHEN RELEVANT. 69
So also where the question is whether a person was the son of a
particular Testator, the fact that all the members of the family appear
to have been mentioned in the Will but that no notice is taken of
such person, would be evidence of the Testator's opinion, expressed
by conduct, as to such person's relationship, and admissible under
this section.
In B, V. Wazera, 8 B. L. R,, Apx,, 63, it was held that the mere
fact of a man and woman living together as husband and wife would
be sufficient, in a prosecution under Section 498 of the I. P. C, to
throw the burthen of proving that they were not so on the accused :
under the present section the burthen of proving a marriage is, in
every such case, thrown on the prosecution.]
51. Whenever the opinion of any
Grounds of opi- living peison is relevant, the grounds
nion when rele- i • i i • • • -i ° i
vant. on which such opinion is based are
also relevant.
Illttstrcaion.
An expert may give an account of experiments performed by him
for the purpose of forming his opinion.
Character when relevant.
52. In civil cases, the fact that the character of
any person concerned is such as to
In civU cases, render probable or improbable any
character to , , \ jixi«*« t .
prove conduct conduct imputcd to him is irrelevant,
t^nt**^^ "^^^' except in so far as such character
appears from facts otherwise relevant.
[By 'persons concerned' is meant i>ersons whose conduct is the
object of the inquiry. It does not include witnesses, as to whom
provision is made in Sections 145, 146, 153 and 155 to regulate
evidence given for the purpose of affecting their credibility.]
In criminal 53. In Criminal proceedings, the
g^^' cCrr fact that the person accused is of a
reieirant. good character is relevant.
54. In criminal proceedings, the fact that the
^ . accused person has been previously
Previous con- • i i /» /»• • i i /ix
viction in crimi- couvictcd 01 any oiience IS relevant ;^^)
nai trials rele- fcufc the fact that he has a bad charac-
vant, but not prC' j • • i , i • i i
vious bad charac- tcr IS irrelevant, unless evidence has
ter, except in re- i^eeii given that he has a good charac-
ter, in which case it becomes relevant.
Digitized by VjOOQIC
70 CHARACTER WHEN RELEVANT. [CH. If,
Explanation. — ^This section does not apply to
cases in which the bad character of any person is
itself a fact in issue. (2>l
[(1) In any criminal proceeding, accordingly, the prosecution may
prov^ a previous conviction as part of the case, and call upon the
Court to take it into account in considering the probabilities of the
case ; no other proof of bad character can oe given except to rebut
evidence of good character.
Evidence as to bad character is thus restricted^ not because it is not
an important element in weighing the probabilities of the case, but
because it is so vague, and so difficult to rebut, that it would be liable
to abuse if it were not confined to a definite, immistakeable matter
such as a previous conviction ; but the consideration of character
must often oe of the utmost importance in weighing the probabilities of
the case. A child is found robbed, raped and brutally murdered. The
circumstances are such that the crimemust have been committed by one
of two men : the first is a noted thief, of violent habits, the second a
person of refinement, wealth and benevolence ; the character of thelatter
renders it almost incredible that he should have committed the crime,
and so strengUiens the case against the former. This is one of the
instances in which Bentham considers that evidence of character is
properly admissible in criminal cases. — Benth, Rat. Ev,^ B, V, ch, xiii.
Upon this section Mr. Norton observes that *' the fact of a pre-
vious conviction can only be relevant for the purpose of enhancing
the sentence to be passed on an accused after he has been found
guilty of the crime for which he is indicted. The fact of a previous
conviction of any offence can never be relevant as an element of
Eroof to establish the guilt of the accused as to the crime with which
e stands charged. The language of the section is not very felici-
tous : but it never can have this wider and more general bearing.'*
This is, it is submitted, an erroneous view of the effect of the sec-
tion. The intention, whether felicitously expressed or not, is
clearly to admit evidence of a previous conviction as part of the sub-
stantive evidence of the case, from which the Courts' inference as to
the prisoner's guilt or innocence will be drawn. The section fputs
evidence of a previous conviction on the same footing as to relevancy as
that upon wmch the previous section puts evidence of good character.
Such evidence miffht, of course, be unimportant, as when the former
offence was so unlike the latter as to suggest no inference as to the
probability of same person having committed both. But it may often
be highly important, and in any case it would be relevant under this
section.
(2) In proceedings under Chapter xxxviii. Sections 504 — 517, of
the Cr. P. C, or under Act XXVII of 1871, (Criminal Tribes,) the
character of person is a fact in issue, and therefore evidence as to it
is relevant under Section 5 : the present section, accordingly, has no
application in such a case.]
55. In civil cases, the fact that the character
of any person is such as to affect the
fStamag^s: amount of damages which he ought to
receive^ is relevant.'^^
Digitized by VjOOQIC
SEC. 55—57.] FACTS WHICH NEED NOT BE PROVED. 71
Explanation. — In Sections 52, 53, 54, and 55, the
word " character" includes both reputation and dis-
position ;(^^ but evidence may be given only of general
reputation and general disposition, and not of parti-
cular acts by which reputation or disposition were
shown/^^
[ (1) As to character as affecting damages, see notes to Section 12.
In an action by a father for seduction of his daughter, the previous
character of the daughter will be relevant ; and in a petition for dis-
solution of marriage and for damages against a co-respondent the
husband may give evidence of the terms of affection on which he
lived with the respondent ; and the co-respondent may give evidence
of cruelty, &c., which would tend to disentitle the husband to damages.
See Act TV of 1869, Section 34.
(2) This clears up a point as to which there has been a difference of
opmion between English Judges, viz., whether evidence of character
extends to disposition as well as to reputation. The more compre-
hensive meaning given to the word * character* in this section is, no
doubt, the right one, when character is regarded as a ground for
inference.
(3) According to English Law, where damages are claimed by a
husband on the ground of his wife's adultery, or by a father on account
of his daughter's seduction, in order to diow the previous character of
the wife or daughter, " not only evidence of general bad cluuracter is
admissible in mitigation of damages, but the defendant may even
wove particular acts of immorahty or indecorum." — TavL, § 630.
Evidence as to particular acts would be inadmissible under tne present
*£xplani^on.'J
PART II.
ON PROOF.
CHAPTER III.
Facts which need not be proved.
Noevidencere. .^S- No fact of which the Court
qnired of fact ju- wiU take judicial notice need be
diciaUy noticed, pr^^ed.
Facts of wWch 57^ The Court shall take judicial
Court must take , . i* ,-i n n • o , "^
judicial notice. notlCC 01 the lolloWlDg lacts : —
(1.) All laws or rules having the force of law
now or heretofore in force or hereafter to be in force
in any part of British India :
Digitized by VjOOQIC
72 FACTS WHICH NEED NOT BE PROVED. [CH. IIT,
(2.) All public Acts passed or hereafter to be
passed by Parliament, and ,all local and personal
Acts directed by Parliament to be judicially noticed :
(S,) Articles of War for. Her Majesty's Army
or Navy :
(4.) The course of proceeding of Parliament and
of the Councils for the purposes of making Laws
and Regulations established under the Indian
Councils' Act, or any other law for the time being
relating thereto.
Explanation. — The word "Parliament," in Clauses
(2) and (4), includes —
1. The Parliament of the United Kingdom of
Great Britain and Ireland ;
2. The Parliament of Great Britain ;
3. The Parliament of England ;
4. The Parliament of Scotland ; and
5. The Parliament of Ireland.
(5.) The accession and the sign manual of the
Sovereign for the time being of the United King-
dom of Great Britain and Ireland :
(6.) All seals of which English Courts take
judicial notice :(i) the seals of all the Courts of
British India, and of all Courts out of British
India, established by the authority of the Governor-
General or any Local Government in Council : the
seals of Courts of Admiralty and Maritime Juris-
diction and of Notaries Public, and all seals which
any person is authorized to use by any Act of Par-
liament or other Act or Regulation having the
force of law in British India :
(7.) The accession to office, names, titles, 'func-
tions, and signatures of the persons filling for the
time being any public office in any part of British
Digitized by VjOOQIC
SEC. 57] FACTS WHICH NEED NOT BE PROVED. 73
India, if the fact of their appointment to such office
is notified in the Gazette of Indiay or in the Official
Gazette of any Local Government :
(8.) The existence, title, and national flag of
every State or Sovereign recognized by the British
Crown :(2)
(9.) The divisions of time, the geographical divi-
sions of the world,(^) and public festivals, fasts, and
holidays notified in the Official Gazette :
flO.) The territories under the dominion of the
British Crown :(4>
(11.) The commencement, continuance, and ter-
mination of hostilities between the British Crown
and any other State or body of persons :
(12.) The names of the members and officers of
the Court, and of their deputies and subordinate
officers and assistants, and also of all officers acting
in execution of its process, and of all advocates,
attornies, proctors> vakils, pleaders, and other per-
sons authorized by law to appear or act before it :
(13.) The rule of the road [on land or at sea.](5)
In all these cases, and also on all matters of
public history, literature, science, or art, the Court
may resort for its aid to appropriate books or docu-
ments of reference.
If the Court is called upon by any person to take
judicial notice of any fact, it may refuse to do so,
unless and until such person produces any such book
or document as it may consider necessary to enable
it to do so.
[(1) The following Seals are mentioned by Taylor as those of
which the English Courts take judicial notice ;-— " the Great Seal ;
the Queen's Privy Seal ; the seal of the Duchy of Cornwall ; the
seals of the superior Courts of Justice ; the Chancery Common Law
seal : and the seal of the Chancery Enrolment Office ; the seals of
the Grand Sessions in Wales, now abolished ; of the High Court of
Digitized by VjOOQIC
74 FACTS WHICH NEED NOT BE PROVED. [CH. Ill,
Admiralty ; of the Prerogative Court of Canterbury ; and of the
Court of the Vice-Warden of the Stanneries ; the seals of all Courts
constituted by Act of Parliament, if seals are given to them by the
Act, and therefore the seals of the Court for Divorce and Matrimo-
nial causes, of the principal Registry, and of the several district
Registries of the respective Courts of Probate in England and Ire-
land, of the Courts of Bankruptcy, of the Insolvent Debtor's Court,
now abolished ; of the Court of bankruptcy and Insolvency in Ire-
land, of the Landed Estates Court, Ireland, and of the country-
Courts. They will also judicially notice the seal of the Corporation
of London, and the seal of a Notary-public, he being an officer
recognized by the whole commercial world. Sevend other seals are
rendered admissible in evidence without proof of their genuineness,
by the express language of particular Statutes ; and among them may
be noticed the seal of the Board of Poor-law Commissioners : of the
now discontinued General Board of Health j of Local Boards of Health;
of the now abolished Metropolitan Commissioners of Sewers ; of the
now abolished Commissioners for the sale of Incumbered Estates in
Ireland ; of the Land Registiy office in England ; of the office for the
Registration of Assurances of Lands in Ireland ; of the General Re-
fister office in England, or Ireland ; of the Charity Commissioners for
England and Wales ; of the special Commissioners for Irish Fisheries ;
of the Commissioners of Patents for Inventions ; of the office of the
Registrar of Designs for articles of manufacture ; and of the Record
Office. In all proceedings too, under the winding-up clauses of the
Companies' Act, 1862, the seal of any Office of the Court of Chancery,
or Bankruptcy, in England or in Ireland, of the Court of Session
in Scotland, or of the Court of the Vice-Warden of the Stanneries,
when appended to any document made, issued, or signed under those
clauses, or any official copy thereof, must be judicially noticed. —
Tayl, § 6.
(2) Where there is a Civil war and one part of a nation establishes
itself as an independent Government, the Judges are bound ex-officio
to know whether or not the Government has recognized such part as
an independent State. — Tayl,^ § 5.
(3) But Courts are not bound to take judicial notice of local
divisions, districts, streets, &c., or the position of places. Proper
proof of such matters should therefore, ir necessary, be forthcoming.
(4) By 6 and 7 Vic, c. 94 (Foreign Jurisdiction), Section 3, if in any
Court in Her Majesty's dominions a question arise as to the jurisdic-
tion of the Crown in any place out of Her Majesty's Dominions, the
Court may transmit questions as to the subject to one of Her Majesty's
principal Secretaries of State, and tlie answer returned will be final
and conclusive evidence of the matters therein contained.
(5.) These words were added by Act XVIII of 1872. The addition
however appears to be of questionable propriety, inasmuch as " the
regulations for preventing collisions at sea," which contain the rules
concerning lights, fog-signals, steering and sailing are now embodied
in a Table issued by virtue of the Act 25 and 26 Vic, c. 63, and of an
order in Council, dated 9th January 1863. Section 26 of the same
Act enacts how those regulations are to be published and proved,"
Viz., by the production, either of the Gazette in which any order in
Council concerning them is published, or of a copy of them purport-
Digitized by VjOOQIC
SEC. 58—60.] ORAL EVIDENCE. 75
ing to be signed by one of the Secretaries or Assistant Secretaries to
the Board of Trade or to be sealed with the seal of the Board.— iViy/.,
§§ 5 a7id 1440.]
58. No fact need be proved in any proceeding
wliich tlie parties tliereto or their
Facts admitted, ^gents agree to admit at the hearing,
or which, before the hearing, they agree to admit by
any writing under their hands,^!) or which by any
rule of pleading(2) in force at the time they are
deemed to have admitted by their pleadings : Pro-
vided that the Court may^ in its discretion, require
the facts admitted to be proved otherwise than by
such admissions.
[ (l) As to the effect of an admission in a suit by a duly authorized
Vakeel, see note (1) to Section 18-
There is no provision in the Indian Law of Procedure, as in Eng-
land, for enabling one party in a suit to call upon the other to admit
a fact, and in the event oi the other party not doing so, to throw
upon him the expense of the proof. Some such provision would be
an useful addition to the Code of Civil Procedure.
(2) The English rules of pleading are so strict that the omission to
contradict a fact at the rignt moment is often tantamount to an
admission of it, " It maybe broadly laid down says Mr. Taylor," that,
whenever a material averment, well pleaded, is passed over by the
adverse party without denial, whether it be by pleading in confession
and avoidance, or by traversing some other matter, or by demurring in
law, or by suffering judgment to go by default, it is thereby, for the
purpose of pleading, if not for the purpose of trial before the iury,
conclusively admitted. — Tayl.^ § 58. Such rigidity is of course wholly
foreign to Indian Procedure. Some pleas are, however, from their
very nature an admission of certain facts ; e, g,, a plea of payment of
a debt necessarily admits the fact of there having been a debt : a plea
of cancelment of a bond admits its execution : a plea of tender of
rent to a landlord admits the fact of a tenancy. This, however^ is
not the result of any " rule of pleading" but of the necessary logical
import of the expressions used.]
Chapter IV. — Of oral Evidence.
59. All facts, except the contents
by^ra/eli^^ of documents, may be proved by oral
evidence.
Oral evidence 60. Oral evidence must, in all cases
must be direct. whatever, be direct ; That is to say —
If it refers to a fact which could be seen, it must
be the evidence of a witness who says he saw it ;
Digitized by VjOOQIC
76 DOCUMENTAKY EVIDENCK [CH. V,
If it refers to a fact which could be heard, it must
be the evidence of a witness who says he heard it ;
If it refers to a fact which could be perceived by
any other sense or in any other manner, it must be
the evidence of a witness who says he perceived it
by that sense or in that manner ;
If it refers to an opinion or to the grounds on
which that opinion is held, it must be the evi-
dence of the person who holds that opinion on those
grounds :
Provided that the opinions of experts expressed
in any treatise commonly offered for sale, and the
grounds on which such opinions are held, may be
proved by the production of such treatises if the
author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as
a witness without an amount of delay or expense
which the Court regards as unreasonable ;
Provided also that, if oral evidence refers to the
existence or condition of any material thing other
than a document, the Court may, if it thinks fit, re-
quire the production of such material thing for its
inspection.
[The oral evidence, however, need not in all cases be given before
the Court itself. As to commissions to take evidence in Civil cases,
see Civ. Pr. Code, Ss. 175—182 ; and in Criminal cases, Cr. Pr. Code,
S. 330.]
Chapter V. — Op documentary Evidence.
Proof of con- ^^' ^^^ contents of documents
tents of docu- may be proved either by primary or
ments, jj^y secondary evidence.
[This section does not, of course, over-ride the Laws as to Stamps
and Registration. As to cases in which registration of documents is
compulsory, see Act VIII of 1871, S. 17 ; and as to those in which
it is permissible, Sec. 18.]
62. Primary evidence means the
denclT*'^ ^'^' document itself produced for the in-
spection of the Court.
Digitized by VjOOQIC
SEC. 61 — 63.] DOCUMENTARY EVIDENCE. 77
Explanation 1. — ^Where a document is executed
in several parts, each part is primary evidence of
the document :
Where a document is executed in counterpart,
each counterpart being executed by one or some of
the parties only, each counterpart is primary evi-
dence as against the parties executing it.
Explanation 2. — Where a number of documents
are all made by one uniform process, as in the case
of printing, lithography, or photography, each is
primary evidence of the contents of the rest ; but
where they are all copies of a common original, they
are not primary evidence of the contents of the
original.
£Uti8tration,
A person is shown to have been in possession of a number of pla-
cards, all printed at one time from one original Any one of the
placards is primary evidence of the contents of any other, but no one
of them is primary evidence of the contents of the original.
[A fraudulent or unauthorized alteration of a document will render
it wholly invalid. " The rule of law, says Mr. Taylor," applicable to
this subject, is, that any material alteration in a written mstrument,
whether made by a party or a stranger, is fatal to its validity, provided
it were made after its execution, and without the privity of the party
to be affected by it, and perhaps, also, with this additional proviso,
that the alteration was made wniie the instrument was in the posses-
sion, or at least under the control, of the party seeking to enforce it.
This rule, which was originally propounded with respect to deeds,
probably because in former days most written engagements were
drawn in that form, has since been extended to negotiable securities,
bought and sold notes, guarantees, and policies of assurance ; and
may now be said to apply equally to all written instruments, which
constitute the evidence of- contracts."— ^ay/.^ § 1617. Any alteration
is of course suspicious and raises a presumption of fraud : " The onus
of proof of the genuineness of an instrument in its altered state lies
on the party claiming under it." — 9 Jf. /. -4., p. 1. But an immaterial
iteration, even by a party to the instrument, does not invalidate
it—Aldous V. Cornwall, L. E., 3 Q. £., 573.]
Secondary evi- 63. Secondary evidence means and
dence. includes —
(1.) Certified copies given under the provisions
hereinafter contained ;(i)
Digitized by VjOOQIC
78 DOCUMENTARY EVIDENCE. [CH. V,
(2.) Copies made from the original by mechani-
cal processes which in themselves insure the accuracy
of the copy, and copies compared with such copies ;
(3.) Copies made from or compared with the
original ;
(4.) Counterparts of documents as against the
parties who did not execute them ;
(5.) Oral accounts of the contents of a document
given by some person who has himself seen it. (2)
Illustrations.
(a.) A photograph of an original is secondary evidence of its con-
tents, though the two have not been compared, if it is proved that
the thing jmotographed was the original.
(6.) A copy compared with a copy of a letter made by a copjring
machine is secondary evidence of the contents of the letter, if it is
shown that the copy made by the copying machine was made from
the original.
(c.) A copy transcribed from a copy, but afterwards compared with
the original, is secondary evidence ; out the copy not so compared is
not secondary evidence of the original, although the copy from which
it was transcribed was compared with the original.
{d,) Neither an oral account of a copy compared with the original,
nor an oral account of a photograph or machine-copy of the original,
is secondary evidence of the origmal.
[ (1) See Sections 76 and 77 as to certified copies.
(2) There are no degrees of secondarv evidence : when once
secondary evidence is admissible, the law makes no distinction between
one class of secondary evidence and another : though the fact
that a party, who gives oral evidence of the contents of a document,
is shown to have better secondary evidence of it, for instance a com-
pared copy of the original, might be ground for an adverse inference
as to the good faith of the party so acting. There are, however, in
Section 65 certain specific directions as to the kind of secondary
evidence to be used in, proving particular matters.]
Proof of docu- 6^- Documents must be proved by
ments by primary primary evidence except in the, cases
evidence. hereinafter mentioned.
Cases in which 65. Secondary evidence may be
re°nt7reLtiig g^^^n of the existence, condition, or
todocuments Contents of a document in the follow-
may be given. ing caSSS :—
Digitized by VjOOQIC
SEC. 64 — 65.] DOCUMENTARY EVIDENCE. 79
(a.) When the original is shown or appears to be
in the possession or power of the person against whom
the document is sought to be proved, or
of any person out of reach of, or not subject to,
the process of the Court, or
of any person legally bound to produce it/^)
and when, after the notice mentioned in section
sixty-six, such person does not produce it,(2)
(6.) When the existence, condition, or contents
of the original have been proved to be admitted in
writing by the person against whom it is proved or
by his representative in interest ;<-^)
(c.) When the original has been destroyed or
lost,(*) or when the party offering evidence of its
contents cannot, for any other reason not arising
from his own default or neglect, produce it in rea-
sonable time;
(d.) When the original is of such a nature as not
to be easily moveable ;
(a) When the original is a public document
within the meaning of section seventy-four ;
(/) When the original is a document of which a
certified copy is permitted by this Act, or by any
other law in force in British India, to be given in
evidence ;
(gr.) When the originals consist of numerous
accounts or other docimients which cannot conve-
niently be examined in Court, and the fact to be
proved is the general result of the whole collection.^^)
In cases (a), (c), and (ci), any secondary evidence
of the contents of the document is admissible.
In case (6), the written admission is admissible.
In case (e) or (/), a certified copy of the docu-
ment, but no other kind of secondary evidence, is
admissible.
Digitized by VjOOQIC
80 DOCUMENTARY EVIDENCK [CH. V,
In case (gr), evidence may be given as to the gene-
ral result of the documents by any person who has
examined them, and who is skilled in the examina-
tion of such documents.
[ (1) As to documents which witnesses are not bound to produce,
see Sections 130 and 131. A witness may also refuse to produce
documents on which he has a lien. As to the general lien of Bankers,
Factors, Attorneys and others on goods bailed to them, see Contract
Act, 1872, Section 171. The result of (a) is that if the document is
in the hands of a person who has a right to retain it, secondary
evidence of its contents cannot be given.
(2) " It would seem that, where a party has notice to produce a particular
instrument traced to his possession, he cannot object to parol evidence of its
contents, on the ground that, previous to the notice, he had ceased to have
any control over it, unless he has stated this fact to the opposite party, and
has pointed out to him the person to whom he delivered it ; neither can he
escape the effect of the notice, by afterwards voluntarily parting "with the
instrument, which it directs him to produce. — Tayh, § 413.
(3) Section 22 provides, contrary to the English Law, that an oral
admission of the contents of a document is inadmissible, until the
person, proposing to give it, shows that he is entitled to use secondary
evidence ; the present clause provides that a toritten admission is
admissible as proof of a document even though the original is in exist-
ence, and might be, but is not, produced.
i4) In order to prove a thing " lost" evidence must be given that
las been looked for :
" What degree of diligence is necessary in the search cannot easily be
defined, as each case must depend much on its own peculiar circum-
stances ; but the party is generally expected to show, that he has, in
good faith, exhausted in a reasonable degree all the sources of informa-
tion and means of discovery, which the nature of the case would natu-
rally suggest and which were accessible to him.
**If the instrument ought to have been deposited in a public office,
or other particular place, it will generally be deemed sufficient to have
searched that place, without calhng the party whose duty it was to
have put it there, or any other person who may have had access to it," —
TayL, §§ 399, 401.
Nor need the search have been recent, or for the purpose of the
particular suit, provided the Court be satisfied that thorough search
was made.
But distinct evidence of the destruction, or loss, and of reasonable
search must be given. When a plaintiff alleged that a document had
been partially destroyed by rats, and put in a registered copy of a
deed together with certain fragments which he alleged to be the frag-
ments of the deed, but offered no evidence of this being so, the Privy
Council rejected the secondary evidence. — Syud Abbas AH Khan v.
Tadeem Uamy Reddi, 3 M, I. A., 156.
**If the instrument were executed in duplicate, or triplicate, &c., the
loss of all the parts must be proved, in order to let in secondary evi-
dence of the contents ; and, in all cases, before such evidence will be
admissible, it must be s^hown that t|^e original instrument was duly
Digitized by VjOOQIC
SEC. 66.] DOCUMENTARY EVIDENCE. 81
executed, and was otherwise eenuine. If the instrument were of such
a nature as to have required attestation, the attesting witness must, if
known, be called, or in the event of his death, his handwriting must bo
proved, precisely in the same manner as if the deed itself had been produced ;
though, if it cannot be discovered who the attesting witness was, this
strictness of proof will, from necessity, be waived. In the absence of
evidence to the contrary the Court will presume that the instrument was
duly stamped."— Tay^., § 405.
As to proof of attestation, see post, Sections 68—9.
Oral jevidence of the contents of a document containing a promise
or acknowledgment in respect of a debt or legacy cannot in any case
be given for t£e purpose of taking the case out of the operation of
the Limitation Act, 1871, though oral evidence as to its date may be
given. See Act IX of 1871, Section 20.
(6) The word "result" must be construed strictly to mean the
actual figures or facts arrived at, not the general effect on a person's
mind. *' This exception" says Mr. Taylor, speaking of the English
Rule on the subject, " will not enable a witness to state the general
contents of a number of letters received by him from one of the
parties in the cause, though such letters have since been destroyed, if
the object of the examination be to elicit from the witness the impres-
sion wluch they produced on his mind, with reference to the degree
of friendship subsisting between the writer and a third party. — Tayl,^
§ 432.]
66. Secondary evidence of the contents of the
Rules as to no- documents referred to in section sixty-
tice to produce, fiyc, clause (a), shall not be given
unless the party proposing to give such secondary
evidence has previously given to the party in whose
possession or power the document is, [*or to his
attorney or pleader] such notice to produce it as is
prescribed by law ; and if no notice is prescribed by
law, then such notice as the Court considers reason
able under the circumstances of the case :(i>
Provided that such notice shall not be required
in order to render secondary evidence admissible in
any of the following cases, or in any other case in
which the Court thinks fit to dispense with it : —
(1.) When the document to be proved is itself a
notice ;
(2.) When from the nature of the case, the
adverse party must know that he will be required to
produce it ;
♦ Added by Act XVIIl of 1872.
Digitized by VjOOQIC
82 DOCUMENTARY EVIDENCE. [CH. V,
(3.) When it appeaars or is proved that the
adverse party has obtained possession of the original
by fraud or force ;
(4.) When the adverse party or his agent has the
original in Court ;
(5.) When the adverse party or his agent has
admitted the loss of the document ;
(6.) When the person in possession of the docu-
ment is out of reach of, or not subject to, the pro-
cess of the Court.
[As to notice to produce in Civil cases, see C. P. C, Sections 40, 43
and 107-8. In Criminal cases the best course would appear to be to
applv for a summons under Sections 366-7, but any reasonable notice
would, apparently, be sufficient to let in secondary evidence.
The notice to produce a document should describe it " with all con-
venient certainty." " It may be difficult to lay down any general rule
as to what the notice ought to contain, since much must depend on
the particular circumstances of each case ; but this much is clear, first,
that no mis-statement or inaccuracy in the notice will be deemed
material, if it be not really calculated to mislead the opponent ; and
next, that it is not necessary^ by condescending minutely to dates,
contents, parties, &c., to specify the precise documents intended. If
enough is stated on the notice to induce the party to believe that a
particular instrument will be called for, this will be sufficient. Thus
a notice to produce " all letters written by the plaintiff to the defend-
ant, relating to the matters in dispute in the action,'' or " all letters
written to or received by the plaintiff between the years 1837 and
1841, both inclusive, by and from the defendants, or either of them,
or any person in their behalf ; and also all books, papers, &c., relating
to the subject-matter of this cause," has been hela sufficient to let in
parol evidence of a particular letter not otherwise specified. — TayLy
§ 413. But a mere notice to produce '* all letters and books relating
to the cause" has been held by the English Courts to be too vague.
"The Legislature has interfered on behalf of merchant-seamen, whose
proverbial inexperience and recklessness have rendered them fit objects for
special statutory protection, and has enacted, that every seaman may
bring forward evidence to prove the contents of his agreement with the
master of the ship, or otherwise to support his case, without producing, or
giving notice to produce the agreement itself or any copy of it." — Tayl.,
§ 424 ; 17 and 18 Vic, c. 104, S. 165:
It will be observed that under this section the Court has the power
of dispensing with the notice " in any case in which it thinks fit."
This is a relaxation of the procedure in force in the English Courts.]
67. If a document is alleged to be signed or to
Proof of signa-
have been written wholly or in part
ture "and' hand- by any person, the signature or the
Digitized by VjOOQIC
SEC. 67—73.] DOCUMENTARY EVIDENCE.
8^
Proof of execu-
tion of document
required by law
to be attested.
writiM of person handwriting of so much of the docu-
si^^ or^^ttln ment as is alleged to be in that per-
document pro- gon's handwriting must be proved to
duced. , • !_• 1 1 •!•
be m his handwritmg.
68. If a document is required by law to be
attested, it shall not be used as evi-
dence until one attesting witness at
least has been called for the purpose
of proving its execution, if there be
an attesting witness alive, and subject to the pro-
cess of the Court and capable of giving evidence.
69. If no such attesting witness can be found, or
Proof where no ^^ *^^ documeut purports to havo been
attesting witness exccutcd in the United Kingdom, it
found. must be proved that the attestation of
one attesting witness at least is in his handwriting,
and that the signature of the person executing the
document is in the handwriting of that person.
70. The admission of a party to an attested
document of its execution by himself
shall be sufficient proof of its execu-
tion as against him, though it be a do-
cument required by law to be attested.
71. If the attesting witness denies
or does not recollect the execution of
the document, its execution may be
proved by other evidence.
Proof of docu- 72. An attested document not
^ired i^^iaw'^to required by law to be attested may be
be attested. provcd as if it was unattested.
73. In order to ascertain whether a signature,
Comparison of Writing, or scal is that of the person
handwritings. \yy whom it purports to havo been
written or made, any signature, writing, or seal
admitted or proved to the satisfaction of the Court
to have been written or made by that person may
Admission of
execution by par-
ty to attested do-
cument.
Proof when at-
testing witness
denies the execu-
tion.
Digitized by VjOOQIC
84 PUBLIC DOCUMENTS. [CH. V,
be compared with the one which is to be proved,
although that signature, writing, or seal has not
been produced or proved for any other purpose.
The Court may direct any person present in Court
to write any words or figures for the purpose of
enabling the Court to compare the words or figures
so written with any words or figures alleged to have
been written by such person.
[As to proof of identity of handwriting, see Sections 45 and 47.]
Public Documents.
PubHc docu. 74. The following documents are
*^ents. public documents : —
1. Documents forming the Acts, or records of
the Acts —
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial, and
executive, whether of British India or of any other
part of her Majesty's dominions, or of a foreign
country.
2. Public records kept in British India of private
documents. ^
Private docu. 75. All other documents are pri-
menta. vatc.
76, Every public officer having the custody of a
Certified copies P^^ic document, which any person
of public docu- has a right to inspect, shall give that
ments. person on demand a copy of it on pay-
ment of the legal fees therefor, together with a
certificate written at the foot of such copy that it is
a true copy of such document or part thereof as the
case may be, and such certificate shall be dated and
subscribed by such officer with his name and his
official title, and shall be sealed, whenever such
Digitized by VjOOQIC
SEC. 74—78.] PUBLIC DOCUMENTS. 85
oflScer is authorized by law to make use of a seal,
and such copies so certified shall be called certified
copies.
Explanation. — knj officer who, by the ordinary
course of official duty, is authorized to deliver such
copies, shall be deemed to have the custody of such
documents within the meaning of this section.
[This with Sections 77 and 80 provides for proof of judicial records.
Proof of previous conviction in criminal cases is specially provided
for in Section 326 of C. P. C] ,
77, Such certified copies may be produced in
Production of proof of the coutcnts of the public
such copies, documcnts or parts of the public docu-
cuments of which they purport to be copies.
Proof of other 73. The followiuff public docu-
public docu- , , ? ^o 11
ments. ments may be proved as follows : —
(1.) Acts, orders, or notifications of the Execu-
tive Government of British India in any of its
departments, or of any Local Government or any
department of any Local Government,
by the records of the departments certified by the
heads of those departments respectively,
or by any document purporting to be printed by
order of any such Government :
(2.) The proceedings of the Legislatures,
by the journals of those bodies respectively, or by
published Acts or abstracts, or by copies purporting
to be printed by order of Government :
(3j Proclamations, orders, or regulations issued
by Her Majesty or by the Privy Council, or by any
department of Her Majesty's Government,
by copies or extracts contained in the London
Gazette^ or purporting to be printed by the Queen's
Printer :
(4.) The Acts of the Executive or the proceed-
ings of the legislature of a foreign country,
Digitized by VjOOQIC
86 PRESUMPTIONS AS TO DOCUMENTS. [CH. V,
by journals published by their authority, or com-
monly received in that country as suchj or by a
copy certified under the seal of the country or
Sovereign, or by a recognition thereof in some public
Act of the Governor-General of India in Council :
(6.) The proceedings of a municipal body in
British India,
by a copy of such proceedings certified by the
legal keeper thereof, or by a printed book purport-
ing to be published by the authority of such body :
(6.) Public documents of any other class in a
foreign country,
by the original, or by a copy certified by the legal
keeper thereof, with a certificate under the seal of a
notary public or of a British Consul or diplomatic
agent, that the copy is duly certified by the officer
having the legal custody of the original, and upon
proof of the character of the document according to
the law of the foreign country.
Peesumptions as to Documents.
79. The Court shall presume^^) every document
Presumption as purporting to be a certificate, certified
togunuinenessof copy, or Other documcut, which is by
certiHed copies. j^^ declared to be admissible as evi-
dence of any particular fact, and which purports to
be duly certified, by any officer in British India, or
by any officer in any native State in alliance with
Her Majesty, who is duly authorized thereto by
the Governor-General in Council, to be genuine :
Provided that such document is substantially in the
form and purports to be executed in the manner
directed by law in that behalf. The Court shall also
presume that any officer, by whom any such docu-
ment purports to be signed or certified, held, when
he signed it, the official character which he claims
in such paper.
Digitized by VjOOQIC
SEC. 79—80.] PRESUMPTIONS AS TO DOCUMENTS. 87
[(I) There are some presumptions as to documents, known to
English Law, for which no express provision is made in the Act, and
which therefore can be raised only under the general provision in
Section 114, Thus "when several sheets of paper, constituting a
connected disposal of property, are found together, the last only duly
signed and attested, the Court, in the absence of direct proof, and
even in spite of partial inconsistencies in some of the provisions, will
presume that each of the sheets so found formed a part of the Will at
the time of its execution.'' — Tayl, § 132. So also the Court will
presume that pencil alterations in a Will are deliberative, especially if
there be other alterations in ink, or if the rest of the Will appears to
be drawn with care, while the pencil alterations are incomplete and
inaccurate. But this presumption may be got rid of by proof of any
facts tending to show that the pencil alterations were finally intended
to form part of the Will.
So also the English Law presumes that aU alterations, interlinea-
tions and erasures in a Will were made subsequent to the execution
of the WiU and codicils, and will grant probate of the Will in its
original form : the contrary presumption is raised in the case of deeds,
and even as to Wills, original blanks filled up will be presumed to have
been filled up previous to the execution. So also there is, except in
certain special cases suggestive of collusion, a general primd fojcit
presumption that aU documents were made on the day they bear
date.— 5ra2^/., §§ 134, 137.
According to English Law there is a conclusive presumption that
a deed under seal has been executed for good consideration ; and
want of consideration cannot, except when fraud is alleged, be pleaded
against such an instrument. No such presumption is sanctioned by
the present Act]
80. Whenever any document is produced before
Presumption on ^^7 ^ourt purporting to be a record
production of re- or memorandum of the evidence or of
cord of evidence. ^^^ ^^^^ ^f ^.j^^ evidence given by a
witness in a judicial proceeding or before any officer
authorized by law to take such evidence, or to be a
statement or confession by any prisoner or accused
person taken in accordance with law and purporting
to be signed by any Judge or Magistrate or by any
such officer as aforesaid, the Court shall presume— -
that the document is genuine; that any statements,
as to the circumstances under which it was taken,
purporting to be made by the person signing it, are
true, and that such evidence, statement, or confes-
sion was duly taken.
[This appears to refer only to judicial records of Courts in Her
Majesty's Dominions : as t(» the presumption as to judicial records of
Courts in other countries, see post^ Section 86.]
Digitized by VjOOQIC
88 PRESUMPTIONS AS TO DOCUMENTS. [CH. V,
81. The Court shall presume the genuineness of
Freaumption as every document purporting to be the
to Gazettes. Londou Gazette, or the Gazette of
India, or the Government Gazette of any Local
Government, or of any colony, dependency, or pos-
session of the British Crown, or to be a newspaper
or journal, or to be a copy of a private Act of Par-
liament printed by the Queen's Printer, and of
every document puporting to be a document directed
by any law to be kept by any person, if such docu-
ment is kept substantially in the form required by
law and is produced from proper custody.
[As to the meaning of proper custody, see post. Section 90.]
82. When any document is produced to any
Presumptionas ^ourt purporting to be a document
to document ad- which, by the law in force for the time
itfwu'hou't feeing in England or Ireland, would be
proof of seal or admissible in proof of any particular
signature. -^ ^^^ Court of Justice in England or
Ireland without proof of the seal or stamp or signa-
ture authenticating it, or of the judicial or official
character claimed by the person by whom it pur-
ports to be signed, the Court shall presume that such
seal, stamp, or signature is genuine, and that the
person signing it held, at the time when he signed
it, the judicial or official character which he claims,
and the document shall be admissible for the same
purpose for which it would be admissible in England
or Ireland.
[By 8 and 9 Vic, c. 113, (the Documentary Evidence Act, 1845) it
is provided that " wherever by any Act now in force or hereafter to
be in force, any certificate, ofiicial or public document, or document
or proceeding of any Corporation or joint-stock or other Company, or
any certified copy of any document, by-law, entry in any register or
other book, or of any other proceeding, is receivable in evidence of
any particular before any legal tribunal or in any judicial proceeding,
the same shall be respectively admitted in evidence, provided they
respectively purport to be sealed or impressed with a stamp, or sealed
and signed or sealed alone, or impressed with a stamp ana signed as
directed by the respective Acts made or to be hereafter made, without
Digitized by VjOOQIC
SEC. 81—84.] PRESUMPTIONS AS TO DOCUMENTS. 89
anyproqf of the seal or stamp, wh^n the seal or stamp is necessary, or
of the signature, or of the official charo/Cter of the person appearing
to have signed the same.
By the English Common Law, oflScial registers, books kept in
public offices recording particular transactions, and other documents
of a public nature are generally admissible in evidence without proof
of their authenticity by the evidence of the persons who prepared
them. And, by 14 and 15 Vic, c. 99, Sec. 14, whenever any document
is of such a public nature as to be admissible in evidence on its mere
production from proper custody, and no Statute exists which renders
its contents proveable by means of a copy, any copy thereof or extract
therefrom shall be admissible in evidence, provided it be proved to
be an examined copy or extract, or provided it purport to oe signed
and certified by the officer to whose custody the original is entrusted.
Under this provision it has been decided that certified copies may be
given in evidence of the contents of parish registers, of the books of
Births, Marriages and Deaths in India which are deposited with the
Secretary of State ; of renters of marriages kept by British Consuls
abroad previous to 28th July 1849 ; (12 and 13 Vic, c 68, Section 28);
and of foreign registers of marriage, on proof that they are required
to be kept by the laws of the countries to which they respectively
belong.— IViiy^., § 1438.
The following are some of the documents which, under the provi-
sions of the English Statute Law, can be proved by certified copies,
and which are of likely occurrence in Indian Courts ; Registers of
Births, Marriages and Deaths made pursuant to the R^stration Act,
6 and 7, W. 4. c 86, Registers of Marriages of British Subjects whicli
since 28th July 1849 have been kept by British Consuls, and certified
copies of which have been transmitted to the Registrar General, 12
and 13 Vic, c. 68, Section 11 : the Registers of British Ships and all
declarations made under the Merchant Shipping Act, 1854, Part II,
as to ownership, measurement and registry of British Ships, 17 and 18
Vic, c 104, Section 107 ; the regulations for preventing collisions at
sea, and the rules concerning lights, fog-signals, steering and sailing
may be proved either by the production of the Gazette in which any
order in Council concerning them is published, or a copy of them
purporting to be signed by one of the Secretaries or Assistant Secre-
taries to the Board, or to be sealed with the seal of the Board ; docu-
ments transmitted by Shipping Masters and Officers of Customs to
the Registrar General of Seamen, under 17 and 18 Vic, c 104, Section
277, may also be proved by a certified copy. — Tayl., § 1440.]
83, The Court shall presume that maps or plans
Proof of maps purporting to be made by the autho-
f ™ ^^f ^nv rity of Government were so made,
poses o I any j , -% , i
cause. and are accurate ; but maps or plans
made for the purposes of any cause must be proved
to be accurate.
84. The Court shall presume the genuineness of
every book purporting to be printed
Presumption as i.t i. j j Ii_ ii -i /'
to collections of or published under the authority ot
Digitized by VjOOQIC
90 PKESUMPTIONS AS TO DOCUMENTS. [CH. V,
laws and reports ^he Govemment of any country, and
to contain any of the laws of that
country, and of every book purporting to contain
reports of decisions of the Courts of such country.
85. The Court shall presume that every docu-
Preaumption as ^icut purporting to be a power of
to powers of at- attorney, and to have been executed
tomey. bcforc, and authenticated by, a notary
public, or any Court, Judge, Magistrate, British
Consul, or Vice-Consul, or representative of Her
Majesty or of the Government of India, was so
executed and authenticated.
[See Indian Registration Act, 1871, Section 33, as to powers of
attorney recognized for the purposes of that Act. The provisions of
that section are not affected oy the present Act ; see ante. Section 2.]
86. The Court may presume that any document
purporting to be a certified copy of
Presumption as-^^.j-v, jr i j.
to certified copies any judicial record ot any country not
of foreign judi- forming part of Her Majesty's domi-
ci&l records • • •/ «/
nions is genuine and accurate, if the
document purports to be certified in any manner
which is certified by any representative of Her
Majesty or of the Government of India resident in
such country to be the manner commonly in use in
that country for the certification of copies of judi-
cial records.
87. The Court may presume that any book to
Presumption as which it may refer for information on
to books & maps, matters of public or general interest,
and that any published map or chart, the statements
of which are relevant facts and which is produced
for its inspection, was written and published by the
person, and at the time and place, by whom or at
which it purports to have been written or published.
88. The Court may presume that a message.
Presumption forwardcd from a telegraph office to
as to telegraphic the persou to whom sucli message
messages. purports to be addressed, corresponds
Digitized by VjOOQIC
SEC. 85—90.] PRESUMPTIONS AS TO DOCUMENTS. 91
with a message delivered for transmission at the
office from which the message purports to be sent ;
but the Court shall not make any presumption as to
the person by whom such message was delivered for
transmission.
89. The Court shall presume that every docu-
ment, called for and not produced
to^reSS." after notice to produce, was attested,
&c., of documents stamped, and executed in the manner
not produced. required by law.
[Where the document is called for and not produced, the Court shall
make the prescribed presumption : in the case of other documents,
the Court may make the presumption, if it thinks fit under Section
114 : but it is not obligatory.]
90. Where any document, purporting or proved
Documents to be thirty years old, is produced
thirty yeara old. from any custody which the Court in
the particular case considers proper, the Court may
presume that the signature arid every other part of
such document which purports to be in the hand-
writing of any particular person is in that person's
handwriting, and, in the case of a document executed
or attested, that it was duly executed and attested
by the persons by whom it purports to be executed
and attested.
Explanation. — Documents are said to be in pro-
per custody if they are in the place in which, and
under the care of the person with whom, they would
naturally be ; but no custody is improper if it is
proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This explanation applies also to section eighty-
one.
IlltLstratiora,
(a.) A has been in possession of landed property for a long time.
He produces from his custody deeds relating to the land showing his
titles to it. The custody is proper.
Digitized by VjOOQIC
92 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
(b.) A produces deeds relating to landed property of which he is
the mortgagee. The mortgagor is in possession. The custody is
proper.
(c.) A, a connection of B, produces deeds relating to lands in B's
possession, which were deposited with him by B for safe custody.
The custody is proper.
[In England it is questionable whether this rule applies to an instru-
ment bearing the seal of a Court or Corporation. — TayL, § 74. No
isuch distinction is retained in the present Act.]
CHAPTER VI.
Of the Exclusion of oral by documentary
Evidence.
91. When the terms of a contract, or of a grant,
^jence o f ^^ of any other disposition of property,
terms of written have been reduced to the form of a
contract, documcnt, and in all cases in which
any matter is required by law to be reduced to the
form of a document,^^) no evidence shall be given in
proof of ihe terms of such contract, grant or other
disposition of property,^^) or of such' matter, except
the document itself, or secondary evidence of its
contents in cases in which secondary evidence is
admissible under the provisions hereinbefore con-
tained.
Exception 1 . — When a public officer is required by
law to be appointed in writing, and when it is shown
that any particular person has acted as such officer,
the writing by which he is appointed need not be
proved.<3)
Exception 2. — ^Wills [*admitted to Probate in
British India] inay be proved by the Probate. W
Explanation 1. — This section applies equally to
cases in which the contracts, grants or disposition of
property referred to are contained in one document,
* Substituted by Act XVIII of 1872.
Digitized by VjOOQIC
SEC. 91.] EXCLUSION OF ORAL BY DOCUMENTARY 93
EVIDENCE.
and to cases in which they are contained in more
documents than oneS^)
Explanation 2. — Where there are more originals
than one, one original only need be proved.(^)
Explanation 3. — The statement in any document
whatever of a fact other than the facts referred to in
this section, shall not preclude the admission of oral
evidence as to the same fact.^*^)
Illiistrations,
(a.) If a contract be contained in several letters, all the letters in
which it is contained must be proved.
(b.) If a contract is contained in a bill of exchange, the bill of
exchange must be proved.
(c.) If a bill of exchange is drawn in a set of three, one only need
be proved.
(d.) A contracts in writing with B for the delivery of indigo upon
certain terms. The contract mentions the facts that B had paid A
the price of other indigo contracted for verbally on another occasion.
Oral evidence is offered that no payment was made for the other
indigo. The evidence is admissible.
(e,) A gives B a receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.
[See Indian Contract Act, Section 10, as to contracts which must be
in writing.
(1) The most important class of matters required by law to be
reduced to the form of a document are testamentary dispositions of
property in cases to which the Indian Succession Act, 1865, or the
Hindu Wills Act (XXI of 1870) apply. The latter enactment affects
the Wills of Hindus, Jainas, Sikhs and Buddhists in the Lower Pro-
vinces of Bengal and the Presidency Towns of Madras and Bombay :
it must be remembered, however, that this chapter does not affect any
provision of the Indian Succession Act, 1865, as to the construction
of Wills : see post, Section 100.
Promises or Acknowledgments in respect of a debt or legacy must,
in ordef to defeat the operation of the Limitation Act, 1871, Section
20, be in writing and signed. As to such promises or acknowledg-
ments in suits mstituted previous to 1st April 1873, see Act XIV of
1859, Section 4. Such promises need not be supported by considera-
tion. See Contract Act, 1872, Section 25, (3).
The acceptance of an inland Bill of Exchange, in cases governed by
English Law, must be in writing. Act VI of 1840, Section 2. Pro-
mises made on account of natural love and affection between parties
standing in a near relation to each other, though without considera-'
tion, are valid under tlie Contract Act, 1872, Section 25, (1), if in
writing and registered. Previous to the passing of the Contract Act,
Digitized by VjOOQIC
94 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
1872, there were various transactions, such as leases, agreements for
leases, promises to answer for the debt of another, ratifications of
debts incurred during minority, which, as between parties personally
subject to English Law, were invalid unless reduced to writing.
This necessity no longer exists. As to contracts by Municipalities,
see Act IX of 1867, (Madras), Section 4 : IV of 1873, (Panjab), Section
18 : III of 1864, (Bengal), Section 9 ; III of 1872, (Bombay), Section 54.
By Section 36 of Act XIX of 1868 (Oudh Kent Act) in a suit
between landlord and tenant, the tenant is not liable to pay rent other
than that payable for the last preceding year unless the court is
satisfied by evidence in writing tnat the parties have so agreed.
The requirements of Hindu Law with respect to the necessity of a
document are thus discussed by Scotland, C. J., " Upon the only
point now before us we must hold the present transaction valid.
It seems from the case just referred to and other authorities, that,
under the Hindu Law, proof of a verbal grant of land, whether by
way of exchange, sale or gift, is good when followed by possession and
otherwise unobjectionable. Indeed in no case does Hindu Law
appear absolutdy to require writing, though as evidence it regards
and inculcates a writing as of additional force and value. 1 JStrange^s
Hindu LaWf 277. (See also a case decided by the Madras Sudder
Adalat, Special Appeal No. 56 of 1857, where a verbal assignment of
waste land was held valid.)"
" There are instances, no doubt, in which works of authority speak
expressly of particular transactions being evidenced by writing. But I
believe in no case can it be considered now that the Hindu Law in this
respect is treated as being anything more than directory. The great
importance and value, however, of written instruments as evidence, make
it most desirable for the true interests of the parties and the ends of justice
that they should be generally adopted ; and where from the circumstances
and nature of the transaction, or the dealings between the parties, or from
the usages of the country, a writing was reasonably to be expected, mere
oral evidence would very properly l5 received and acted upon with extreme
caution and deliberation ; as such evidence alone can unquestionably be
easily made the means of falsehood and fraud* The reported cases, in
which the Sudder Court appears to have decided against the sufficiency of
oral evidence in the instances of a sale of land, an assignment of a bond,
and a perpetual lease, we cannot, I think, regard as satisfactory authorities
in so far as they were intended to decide not merely the insufficiency
of the particular circumstances in evidence in each case, but that the law
rendered a writine absolutely indispensable to the vaUdity of such sales,
assignijients and leases," — MarUena Rayaparaj v, Chekuri Venkataraj, 1
M. H. a R.y 100,
The authority to the widow to adopt need not be in writing, though
it generally is ; as in prudence it ought to be, time and means existing.
Strange n, Z., 80. Nor need the adoption itself be in writing. Id. 93,
and though in cases of partition the law prescribes "a written memorial
of distribution, yet it has not rendered it indispensable." — Id, 222.
" We understand it to be undisputed, said their Lordships, in the
Judicial Committee, that a division (of a joint Hindu family) may be
effected without instrument in writing." — Bewan Fersad v. Mt
Radha Beebee, 4 M. /. A,, 168.
The meaning of the expression " reduced to tte form of a document,"
is thus explained by Mr. Taylor :
Digitized by VjOOQIC
SEC. 91.] EXCLUSION OF ORAL BY DOCUMENTARY 95
EVIDENCE.
*' So where, at the time of letting some premises to the defendant, the
plaintiff had read the terms from pencil minutes, and the defendant had
acquiesced in these terms, but ha^ not signed the minutes ; and where,
upon a like occasion, a memorandum of agreement was drawn up by the
landlord's bailiff, the terms of which were read over, and assented to by the
tenant, who agreed to bring a surety and sign the agreement on a future
day, but omitted to do so ; and where, in order to avoid mistakes, the
terms upon which a house was let, were, at the time of letting, reduced to
writing by the lessor's agent, and signed by the wife of the lessee, in
order to bind him, but the lessee himself was not present, and did not
appear to have constituted the wife as his agent, or to have recognised her
act, further than by entering upon and occupying the premises ; and where
lands were let by auction, and a written paper was ddivered to the bidder
by the auctioneer, containing the terms of the letting, but this paper was
never signed either by the auctioneer or by the parties ; and where, on the
occasion of hiring a servant, the master and servant went to the chief con-
stable's clerk, who in their presence, and by their direction, took down in
writing the terms of the hiring, but neither party signed the paper, nor did
it appear to have been read to them ; in all these instances the Court held
that parol evidence was admissible, since the writings only amounted,
either to mere unaccepted proposals, or to minutes capable of conveying no
definite information to the Court or Jury, and they could not, by any
sensible rule of interpretation, be construed as memoranda, which th6
parties themselves intended to operate as fit evidence of tiieir several
agreements.'' — Tayl,, § 377.
(2) This will not preclude proof being given aliunde of the consi-
deration for a contract where no mention of it is made in the contract
and where, as is often the case, it is necessary to prove consideration
in order to support the validity of a contract If A contracts with £,
the consideration which leads him to do so i3 £'s contract vdth him,
and, if this has not been reduced to writing, there is no objection to
its being proved in any other way. This is the English Law. " If
no consideration is stated in a deed, the party will be allowed to
prove one by extrinsic evidence : and if the deed is expressed to be
made '' for divers goods considerations" it may be averred and proved
by parol that the bargainee gave money for his bargain. — Feacock v.
Monk, 1 Ves. Sen., 128; TayL, § 1040.
(3) '*So the fact of birth, baptism, marriage, death, or burial, maybe
proved by parol testimony, though a narrative or memorandum of these
events may have been entered in registers, which the law requires to be
kept, for the existence or contents of these registers form no part of the
fact to be proved, and the entry is no more than a collateral or subsequent
memorial of that fact, which may furnish a satisfactory and convenient
mode of proof, but cannot exclude other evidence, though its non-production
may afford grounds for scrutinising such evidence with more tlum ordinary
care."— Tajf/., § 386.
(4) As to grant of probate where the Will has been lost, mislaid
or destroyed, see Indian Succession Act, 1865, Secti«>ns 208, 209 ; and
where the original is in possession of a party residing out of the pro-
vince, who refuses or neglects to deliver it up, Section 210. Where
the WiU is in the possession of a person, out of the province, who
has refused or neglected to deliver it up, but a copy has been trans-
mitted to the executor, and it is necessary on the interests of the
estate that probate be granted forthwith, probate may be granted
upon the copy limited until the Will or an authenticated copy be
produced.
Digitized by VjOOQIC
96 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
(5) When a contract is completed through a broker, the ordinary
course is for him to sign an entry in his book, as common agent of
the seller and buyer, and to send a * bought note' to the buyer, and a
' sold note' to the seller. Some doubts nave been expressed in the
English Courts as to what in such a case is the document containing
the contract : on some occasions it has been held that the broker's
signed entry is the original contract, and the bought and sold notes
. only copies of it : in others it has been found as a fact that by the
custom of trade, the bought and sold notes constituted the contract.
If there be no bought and sold notes, or if the bought and sold notes
differ, the original signed entry must be resorted to and will bind the
parties.
The Calcutta High Court has held that, where a contract of sale is
effected through a broker, who sends bought and sold notes to the
buyer and seller, the fact that the bought and sold notes did not
agree and were not returned by the parties is not positive evidence
that the parties did not agree. The contract was made before the
notes were written and the notes were sent by the broker to his
principals merely by way of information ; and the plaintiff is entitled
to give parol evidence of the terms of the contract. — Carton v. Shaw,
9 B, L, B., 245.
Pitt's V. Beckett, 13 M. dh W., 746. " The bought and sold notes are
primd facie evidence of the contract between the parties : but they
are not necessarily the real contract. It is stiU competent to the
defendant to show that they were not the contract. The plaintiff has
to prove not only that they were signed, but that they were signed
as tJie contract between the parties. — Wilde, B,, in Rogers v. Henley,
32 L. J,, Ex. 191. See also Come v. Reinply, 3 M, /. A., 500.
(6) See Section 62, Explanation 1.
(7) The section applies only to evidence given in proof of ilie terms
of a contract and therefore the fact of there being a contract may be
proved orally though it has been reduced to writing : e, g.,as between
landlord and tenant, the fact of the tenancy, though there is a lease,
but not whether any, or what rent was due. — Tayl., § 372.,
So, if the fact of the occupation of land is alone in issue, without
respect to the terms of the tenancy, this fact may be proved by any
competent parol evidence, such as payment of rent, or the testimony
of a witness, who has seen the tenant occupy, notwithstanding it
appears that the occupancy was under an agreement in writing ; and
where a tenant holds land under written rules, but the length of his
term is agreed on orally, the landlord need not produce these rules in
an action of trespass under a plea denying his possession, because
such plea only renders it necessary for the plaintiff to prove the
extent of the tenant's term, which, having been' agreed to by parol,
does not depend upon the written rules. The fact of partnership may
also be proved by parol evidence of the acts of the parties, without
producing the deeds ; and the fact that a party has agreed to sell
goods on commission may be established by oral testimony, though the
terms respecting the payment of the commission have been reduced
into wnting.—Tai/L, | 376.
Illustrations (d) and (e) give examples of matters, the mention of
which in a document does not preclude their proof aliunde; in (d)
Digitized by VjOOQIC
SBC. 92.] EXCLUSION OF ORAL BY. DOCUMENTARY 97
EVIDENCE.
because the fact mentioned, t . e., A's having paid the price of the other
indigo was not one of the tenns of the contract : in (e) because a
memorandum of receipt is not a '^ contract, grant, or disposition of
property." and therefore no mention of any fact in a receipt interferes
with its being proved in any other manner.
This rule appliesito cases in which parties agree orally to abide by
the terms of a written agreement : e. g.^ if a landlord agrees by parol
with his tenant to hold on the terms of a former lease made between
the landlord and a stranger, he cannot sue on the contract without
producing the lease. — Turner v. Power, 1 B,& C, 625 ; TayL, § 372.
As to the mode of stopping oral evidence of contracts so reduced to
writing, and as to the course to be pursued where oral evidence is
tendered of the contents of a document, see post, Section 144.]
92. When the terms of any such contract, grant
_ , . , or other disposition of property, or
Exclusion of ,, ^ •jT.i/i
evidence of oral any matter required by law to be
agreement. roduced to the form of a document,
have been proved according to the last section, no
evidence of any oral agreement or statement shall be
admitted as between the parties to any such instru-
ment or their representatives in interest, for the
purpose of contradicting, varying, adding to, or
subtracting from, its terms :
Proviso (l). — Any fact may be proved which
would invalidate any document, or which would
entitle any person to any decree or order relating
thereto ; such as fraud, intimidation, illegality, want
of due execution, want of capacity in any contract-
ing party, want or failure of consideration, or mis-
take in fact or law.^^)
Proviso (2). — The existence of any separate oral
agreement as to any matter on which a document is
sUent, and which is not inconsistent with its terms,
may be proved.(2) In considering whether or not
this proviso applies, the Court shall have regard to
the degree of formality of the document.
Proviso (3). — ^The existence of any separate oral
agreement, constituting a condition precedent to the
attaching of any obligation under any such contract,
grant or disposition of property, may be proved. W
M
Digitized by VjOOQIC
98 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VT,
EVIDENCE.
Proviso (4). The existence of any distinct subse-
quent oral agreement^^) to rescind or modify any
such contract, grant or disposition of property, may
be proved, except in cases in which such contract,
grant or disposition of property is by law required
to be in writing, or has been registered accordmg to
the law in force for the time being as to the regis-
tration of documents.
Proviso (5). — Any usage or custom by which in-
cidents, not expressly mentioned in any contract,
are usually annexed to contracts of that description,
may be proved : Provided that the annexing of
such incident would not be repugnant to, or incon-
sistent with, the express terms of the contract. ^5)
Proviso (6). — Any fact may be proved which
shows in what manner the language of a documenfc
is related to existing facts. (^)
Illustrations.
(a.) A policy of insurance is effected on goods " in ships from
Calcutta to London.^' The goods are shipped in a particular ship
whi(^ is lost. The fact that that particular ship was orally excepted
from the policy, cannot be proved.
(b.) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st
March 1873. The fact that, at the same tune, an oral agreement was
made that the money should not be paid till the 31st March, cannot
be proved.
(c.) An estate called * the Rampore tea estate' is sold by a deed
which contains a map of the property sold. The fact that land not
included in the map had always been regarded as part of the estate
and was meant to pass by the deed, cannot be proved.
(d) A enters into a written contract with B to work certain mines,
the property of B, upon certain terms. A was induced to do so by a
misrepresentation of B's as to their value. This fact may be proved.
(e.) A institutes a suit against B for the specific performance of a
contract, and also prays that the contract may be reformed as to one
of its provisions, as that provision was inserted in it by mistake. A
may prove that such a mistake was made as would by law entitle him
to have the contract reformed.
(/.) A orders goods of B by a letter in which nothing is said as to
the time of payment, and accepts the goods on delivery. B sues A
for the price. A may show that the goods were supphed on credit
for a term still unexpired.
Digitized by VjOOQIC
SEC. 92.] EXCLUSION OF ORAL BY DOCUMENTARY 99
EVIDENCE.
(gr.) A sells B a horse and verbally warrants him sound. A gives
B a paper in these words : * Bought of A a horse for Rs. 500.* B may
prove the verbal warranty.
(A.) A hires lodgings of B, and gives B a card on which is written
— ' Rooms, Rs. 200 a month.' A may prove a verbal agreement that
these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped a^ee-
ment drawn up by an attorney is made between them. It is silent
on the subject of board. A may not prove that board was included
in the terms verbally.
(».) A applies to B for a debt due to A by sending a receipt for
the money. B keeps the receipt and does not send the money. In a
suit for the amount, A may prove this.
(j,) A and B make a contract in writing to take effect upon the
happening of a certain contingency. The writing is left with B, who
sues A upon it. A may show the circumstances imder which it was
delivered.
[ (1) This is in accordance with English Law, which allows evidence
to be given in variance of the terms of a contract to show that,
though no illegality is apparent on the face of it, the transaction was
really unlawfm and the agreement, consequently, void.
So also extrinsic evidence is permissible to show that certain
words in a contract must, from the circumstances of the case, have
been inserted by mistake. Thus, where a charterparty was dated
February 6th, and contained a covenant that a ship snould sail on
February 12th, evidence was admitted to show that in fact the
charterparty was not signed till March 15th, and that, consequently,
the stipulation as to the ship sailing on February 12th, could have
formed no part of the contract. — Hall v. Cazenove, 4 ^ast. All. As to
Wills, see Guardhoxut v. Blackburn^ L, E., 1, Pr, 109.
In the Exchequer Chamber it has been held that, where a party had
specially stipulated that he was acting as agent for another, and had
signed as such agent for his absent principal named, he was at liberty
to show by way of equitable defence that the agreement, which had
been drawn up in such terms as to make him personally liable, was
so written by mistake and did not express the real contract. —
Wake V. ffarrop, 30 L. /., Ex., 273 ; 31 L. J., Ex., 451.
As to cases in which a Court of Equity will allow mistake to be
shown without reforming the a^eement, see Sugden's Vendors and
Purchasers, 10th edition, p. 224, Sections 18, 20 and 24.
In Vorley v. Barrett, 26 L. J., C, P., 1, an action against a surety, the
defendant pleaded that the plaintiff had, without the defendant's
consent, released the surety. To this it was replied that the agree-
ment, by which it was alleged that the principal debtor was released,
was worded by mistake so as to include the present claim, and
that the plaintiff did not otherwise discharge the debtor, and that
the true agreement was, in all respects, performed. This was held
, a. good defence.
As to the circumstances under which mistake, fraud, want of capa-
city in a contracting party or want of consideration wUl avoid a con-
tract, see Contract Act, 1872, Sections 20—22.
Digitized by VjOOQIC
100 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
The effect of this proviso and Illustration (c) is somewhat to extend
the rule of the Enghsh Courts of Equity, according to which a suitor
asking for specific performance cannot set up thatpart of the agreement
was inserted by mistake, though a defendant resisting specific per-
formance could do so.
(2) Thus where plaintiff had lent money to defendant and there
was an entry in plaintiff^s book of the amount of the loan and the
rate, but not as to date of repayment, evidence would be admissible
of a contemporaneous oral agreement as to the time of repayment. —
Beharry Lai v. Kameenee Soodaru, 14 Su(h, W, B., C. E,, 320.
The intention of the parties that the writing should not contain
the whole agreement between them may be shown by direct evidence,
or inferred from the informality of the document. — Leake, 103, Note 6.
It often happens that the parties to a conveyance, purporting on
its face to be a purchase deed, seek to enforce it as a mortage.
This a Court of Equity can do. " That this Court," said Lord
Cottenham in a case of this nature, *' will treat a transaction as a
mortgage, although it was made so as to bear the appearance of an
absolute sale, if it appears that the parties intended it to be a
mortgage, is no doubt true ; but it is equially clear, that if the parties
intended an absolute sale, a contemporaneous agreement for a
re-purchaseLnot acted upon, will not of itself entitle the vendors to
Teaeem"— Williams v. Owen, 3 My. & Gr,, 303. " Some difficulty,"
it has been observed, arises occasionally in determining whether a
conveyance is intended to be a mortgage or not. Where this is the
case, parol evidence will be admitted to show that, what appears on
the face of it to be an absolute conveyance, was intendea to be a
conveyance by way of mortgage only. Thus, in Maocwell v.
Montacute, Prec, Ch. 526, where a person refused to execute according
to agreement a defeasance, after the mortgagor had executed an
absolute conveyance. Lord Nottingham admitted parol evidence to
show the agreement, and decreed against the mortgagee."-— 2 W. and
T., L. C, p. 956. On the same principle. Peacock, (7. J., laid down that,
although rtiere verbal evidence was inadmissible to contradict a written
contract, yet the real intention of the parties to it, as to whether a sale
should be absolute or conditional, must be gathered from the collateral
circumstances of the case. — Ka^heenath Ghatterjee v. Chundee Chum
Banerjee. 5 S, W. R,, 68. The Judicial Committee of the Privy
Council have recently decided in Mt Tkukrain Sookrqj Koowar v.
The Government and others, that Trusts may often exist, not reduced
to writing, which the Courts will recognize. — Mmsumat Thvkrain
Sookraj Koowar v. Government, 14 M.LA., 112.
Under the present proviso the Courts will have to consider (1)
whether the matter is one about which the document is silent ;
(2) whether the alleged contemporaneous agreement is inconsistent
with the provisions of the document, and (3) whether the formality
of the document renders it improbable, or its informality renders
it probable that the parties did not intend to express the
whole of their intentions in it. Of course the more formal the
document, the greater is the probabilitv that the parties intended it
to comprise the entire transaction, and tne greater, consequei^tly, will
b« the Court's reluctance to let in oral evidence of a separate agreerilcnt.
Digitized by VjOOQIC
SEC. 92.] EXCLUSION OF ORAL BY DOCUMENTARY 101
EVIDENCE.
This is shown by the two cases in Illustration (A). So with regard to
(t) if there is a regular written contract of sale, so framed as, appar-
ently, to cover the entire transaction, oral evidence of a warranty or
of a representation that the goods were of a particular quality would
be rejected.— Zrarnor v. Graves, 24 L.J., C,P., 53. So wnere a tenant
occupied premises under a written agreement, parol evidence of an
understanding between the parties that the rent should commence
from a later date than that mentioned in the agreement, was refused. —
Henson v. Cooper, 3 Scott, N. i?., 48. But a mere informal memoran-
dum will not have the same affect : thus the following memorandum
of the hire of a horse, "six weeks at two guineas, W. H.," was
held not to exclude evidence of a contract that all accidents occasioned
by the horse's shying, should be at the risk of the hirer. But the
separate oral agreement must not be inconsistent with the terms of
the written one : thus the acceptor of a Bill of Exchange cannot set
up a parol contract inconsistent with the contract on the face of the
Bill : e, gr., an acceptor cannot show that a Bill was given by way of
security for the repayment of a debt which was agreed to be paid
in instalments.-— J5e5at^^ v. Cross, 20 L, J,, C. -P., 173.
So again, where a bond is conditioned for payment absolutely, the
defendant will not be allowed to show that there was an agreement,
that the bond should operate merely as an indemnity : nor when a
note was, on the face of it, payable on a day certain, to show an oral
agreement that it should be payable on a contingency, or that it
should not be paid but be renewed. And so, where a promissory note
is in its terms joint, one of the parties cannot show that he is a surety
only ; nor when a person has signed as Principal, can he show that he
was merely an agent.
So when a policy of Insurance was on an adventure from Archangel
to Leghorn, evidence was not allowed to be given of a parol agree-
ment that the risk should commence at a shorter point. — Good, 364.
But this will not preclude a party from availing himself of any Equities
to which the circumstances of the case give rise. As where money
has been advanced on a loint and several promissory note, one of the
makers of which is merely surety for the other, and this fact is known
to the lender ; in such case the surety, notwithstanding the form of
the note, may plead as an equitable defence that he was Known to the
lender to be surety when the note was made, and that without his
consent time has been given by the lender to the principal debtor. —
Tayl, § 1054.
In Bholonaih Khettri v. Kahprasad Agurwalla, 8 B. L, R., 91,
Paul, J., over-ruling a decision of the Full Bench, and relying on
Muttyloll Seal v. Anundchunder Sundle, 5 M, I. A., 72, held that
evidence was admissible to prove a verbal def eazance of a written
contract, as e. g., that a conveyance of lease and release was in the
nature of a mortgage, with a power of redemption. Paul, J., pointed
out that there were instances in which the parties agree that a docu-
ment shall be executed not embodying all the terms by which they are
to be bound ; and in such cases it cannot be said that the terms of the
contract have been reduced to writing.
In Morgan v. Griffith, L, R., 6 Ex,, 70, the plaintiff had agreed to
hire certain grass land of the defendant, and had refused to sign the
Digitized by VjOOQIC
102 EXCLUSION OF ORAL BY DOCUMENTARY [CH VI,
EVIDENCE.
lease unless the defendant would promise to destroy the rabbits. The
defendant refused to put a term to this effect in the lease, but pro-
mised orally to destroy them. The plaintiff afterwards sued for the
failure to destroy. Held that the oral agreement was collateral to
the lease and that evidence of it was properly admitted.
(3) Thus " it may be shown by parol evidence that an instrument,
apparently executea as a deed, liaa really been delivered simply as an
escrow, or that a docimient signed as an agreement, had not been
intended by the parties to operate as a present contract, but that it was
meant to be conditional on the happening of an event, wliich had
never occurred." — TayL, § 1038. For instance, where a bond recited
the receipt of Kupees 200 and promised interest and repayment
on demand, the defendant proposed to show by oral evidence that
the real consideration for the bond was, not the Rupees 200, but the
plaintiff's abstinence from preventing the defendant negotiating
another loan, and that the plaintiff did not so abstain : it was
held that the defendant was at liberty to give evidence of the
alleged verbal agreement, as, if the defendant's statement was true,
the agreement was that the bond should become binding only in cer-
tain events, which had not happened ; and the agreement had accord-
ingly never become binding on the defendant — 1 M. H. C. -/?., 457.
See also Pt/m v. Campbell, ^ E, <k B., 370.
(4) The English rule that the obligation imposed by a deed can
be dissolved only by an instrument of equal solemnity, does not
apply in India. The only cases in which a contract, grant or disposi-
tion of property cannot subsequently be set asi^e by word of mouth,
are
(1) when the contract, grant or disposition is one which is
by law required to be in writing :
(2) when it has been registered.
(5) Where a written instrument provided for a joint-tenancy and
joint-contract by all the parties executing it to pay the whole rent of
the village witnout any reference to the quantity of land held by
each:
Held that oral evidence was not admissible to show that separate
specific contracts imposing a several liability on each according to the
amount of land held by hun : and that it made no difference that the
evidence was put forward as evidence of a custom. — Morris v.
Fanchanada Pillay, 5 if. H, C, i?., 135.
The meaning of the tenn * inconsistent' as used in reference to this
subject, and tne reasons for admitting evidence of usage in such
cases, were thus explained by Lord Campbell, C. J., in Humphrey v.
Dale, In that case linseed oil had been purchased through London
brokers, by bought and sold notes, and the name of the purchaser was
not disclosed in the bought note. Evidence was received of a usage
of trade in the City, by which every buying broker, who did not at
the time of the bargain, name his principal, rendered himself liable
to be treated as the purchaser by the vendor. " In a certain sense,"
observed Lord Campbell, every material incident which is added to a
written contract, varies it, makes it different from what it appeared
to be and so far is inconsistent with it. If by the side of the written
contract without, you write the same contract with, the added inci-
dent, the two would seem to import different obligations, and to be
Digitized by VjOOQIC
SEC. 92.] EXCLUSION OF ORAL BY DOCUMENTARY 103
EVIDENCE,
different contracts. To take a f ^oniliar instance by way of illustra-
tion : on the face of a Bill of Exchange at three montns after date,
the acceptor would be taken to bind himself to the payment precisely
at the end of the three months ; but by the custom he is only bound
to do so at the end of the days of grace, which vary according to the
country in which the bill is made payable, from three up to fifteen.
The truth is, that the principle on which the evidence is admissible
is, that the parties have not set down on paper the whole of their
contract in all its terms, but those only which were necessary to be
determined in the particular case by specific agreement, and which, of
course, might vary infinitely, leaving to implication and tacit under-
standing, all those general and unvarying incidents which a uniform
usage would annex, and according to which they must in reason be
understood to contract, unless they expressly exclude them. To fall
within the exception therefore of repugnancy, the incident must be
such as, if expressed in the written contract, would make it insensible
or inconsistent. Thus to warrant bacon to be prime signed^ adding
* that is to say slightly tainted, as in Yates v. Pym, 6 Taunton, 446 ;
or to insure all the boats of a ship and add ' that is to say all not
slung on the quarter as in Blackett v. The Royal Exchange Assurance
Comjyany, 2, C. and J,, 244, and other cases of the same sort scattered
through the books would be instances of contracts in which both the
two parts could not have full ^ect given to them if written down ;
and, therefore, when one part only is expressed, it would be unrea-
sonable to suppose that the parties intended to include the other
also. Without repeating ourselves it will be found that the same
reasoning applies when the evidence is used to explain a latent am-
biguity of language. Merchants and Traders with a multiplicity of
transactions pressing upon them, and moving in a narrow circle
and meeting each other daily, dekre to vrrite htile and leave unwrit-
ten what they take for granted in every contract In spite of the
lamentations of Judges^ thev will continue to do so : and in a vast
majority of cases, of which the Courts of Law hear nothing, they do
BO without loss or inconvenience : and upon the whole they find this
mode of dealing advantageous, even at the risk of occasional litiga-
tion. It is the business of Courts reasonably so to shape their
rules of evidence as to make them suitable to the habits of mankind
and such as are not likely to exclude the actual facts of the dealings
between parties, when they are to determine on the controversies
which grow out of them. It cannot be doubted, in the present case,
that in fact this contract was made toith the usage understood to be
a term in it : to exclude the usage is to exclude a material term of
the contract and must lead to an unjust decision* — Humphrey v. Dale,
*J E.<k £., 266.
But where an usage conflicts with the expressed intention of
the document, the latter must be followed : thus, where in an
agreement between an African Merchant and an African Captain,
the latter was to have a commission of " £6 per cent on the net pro-
ceeds of the homeward cargo, after deducting the usual charges" parol
evidence was not admitted to show that, according to the course of
trade between African Captains and Merchants, the Captain was en-
titled to a commission on the whole amount for which the cargo, had
been sold, and not merely the net pronts.— Zaiwc v. Eorsfall,
ZCdt K., 349.
Digitized by VjOOQIC
104 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
BVIDENCK
So also where A contracted to deliver to B 2,000 maunds of fresh,
clean and good up-country Indigo, guaranteed growth of season,
1870-1, A was not allowed to prove a custom of mixing seedsof two crops
so as to bring up the sample to an average quality, as this would be
distinctly at vari^tnce with the terms of the contract. — Mdcfarlane <b
others v. Carr <lc others, 8 B. L. B,, 469.
In Spartali v. Benecke, 19 L. J., (7. P., 293, there was a sale of goods
at a specified price, " to be paid for by cash in one month, less 5 per
cent, discount, it was held that evidence could not be given of an
usage of trade, by which vendors in such contracts were not bound
to deliver without payment; such an usage being inconsistent
with the terms of the contract. This judgment must, however,
be considered as over-ruled by Field v. Lelean, subsequently decided
in the Exchequer Chamber. In that case the contract was " Bought —
250 shares, at £2'6s. per share, £562-105. for payment, half in two, half
in four months ; it was held that parol evidence of a custom among
dealers in such shares, that delivery should take place concurrently
with payment, was admissible. — Field v. Lelean, 30 L. J., Ex,, 168.
So also the drawers of a Hundi in favor of plaintiff at Dacca,
(where all parties to the hundi lived) were not held liable on proof
that they were the gomastas of the acceptor, had no interest in the
hundi, and that, according to the custom of Dacca, where the hundi
was drawn and accepted, agents are not, under such drcHmstances
liable, though the agency does not appear on the hundi — Hazari
Mull V. Sohugh Mull, 9 B, L, R., 1.
Where there is a usage or custom of trade, the intention of the
parties to exclude a contract from its operation must be shown by
the contract itself, and cannot be proved bv other evidence. Thus,
where there was a sale of rum. no mention being made of warehouse
rent, evidence was admitted tnat, by custom of trade, an allowance
for warehouse rent was incorporated in such contracts ; but evidence
that the parties had orally agreed to make an allowance different from
the customary one, was refused. — Fawkes v. Lamb, 31 L, «/., Q, B., 98.
As to the " usage" which may be proved as adding an incident to
a written contract, " there needs not either the antiquity, the uni-
formity or the notoriety of custom, which, in respect of all these
becomes a local law. The usage may be still in the course of growth ;
it may require evidence for its support in each case ; but in the result
it is enough if it appear to be so well known and acquiesced in, that
it may be reasonably presumed to have been an ingredient taoitiy im-
ported by the parties into the contrBjcL^—^uggomohun Ghose v. Ma-
nichund, 7 M. L A,, 282.
In an action against the drawer of a bill of exchange drawn and
indorsed in England, and payable abroad, and dishonored, evidence
is not admissible to prove a usage among merchants here to entitle the
holder, at his option, to demand from the drawer the amount of re-
exchange, or the sum which he gave for the piurchase of the bilL
Thisbemg a usage which in terms contradicts the written instrument.
—Suse V. Pomp, 30 X. J., (7. P., 76.
(6) Under this proviso, it is apprehended, evidence might be given
as to what did, as a fact, pass by a deed,'the language of which is sus-
ceptible, with equal propriety, of two constructions. For instance,
where premises were leased, including a yard described by metes and
Digitized by VjOOQIC
SEC. 92.] EXCLUSION OF ORAL BY DOCUMENTARY 105
EVIDENCE.
bounds, and the question was whether a cellar under the yard was or
was not included in the lease, oral evidence was admitted that at the
time of the lease, the cellar was in the occupancy of another tenant,
and so could not have been intended to pass by the lease. — Doc. v.
Biist, 1 T. B,y 701. Thus also where an admission in writing is
necessary, it does not follow that the document must be self-contained,
or that nothing beyond the document can be looked at to deter-
mine the subject of the admission. Thus in S. A. 446 of 1869,
Madras H. C. E., Vol. V, 320, in a suit for redemption of mort-
gaged land, the defendant had given a written admission that he
held land upon mortgage in a specified district from the plaintiff, and
external evidence was admitted to show to what land the admission
referred.
So where in an answer to a letter by mortgagor's agent, desiring to
see the mortgagee on the subject of his claims on the property, the
document relied on as an acknowledgment of the mortgagor's title
merely was " Sir, I received yours of the 2nd instant, I do not see
the use of a meeting unless some party is ready with the money
to pay me f this was held a sufficient acknowledgment of the mort-
gago]?s title to redeem. So in another case the V. C observed,
"it appears to me that the Court, being in possession of the
circumstances of the case, must construe the letter in the way in
which the writer intended it to be construed by the person to whom
it was addressed."
A Pottah is a generic terra, embracing every kind of engagement
between a Zemindar and his Tenants, or Kyots. If the Pottah does
not contain the terni " Mocurrerjr'' or equivalent words of limitation,
as " from generation to generation,'* it is not 2!)rimd facie to be
assumed to grant a Mocurrery-instimirary, or perpetual tenure ; but
evidence of long uninterrupted enjoyment, at a fixed unvarying rent,
will supply the want of words of limitation in such Pottah.
Where, therefore, Pottah, dated 1792 was granted to the predecessor
in title, of A by the predecessor in title of B, addressed to him as
Moostager or Farmer, without any words of limitation, and the
property comprised in the Pottah remained in 4;he uninterrupted
possession of the lessee and his successor at a fixed rent up to the
year 1861, it was held, that such long and uninterrupted possession
conferred a sufficient title to defeat the right of the then Landlord to
an enhancement of rent under the provisions of Act No. X of 1859
11 if. /. ^., 433.
Under Act IX 6f 1871, an acknowledgment in respect of a debt or
legacy may be sufficient for the purposes of Section 20, though it is
undated, and though it omits to specify the exact amount of the debt
or legacy. Extrinsic evidence will be admissible to establish these
points. See also Umesk Chundra Mooherjee v. E. Sageman, 5 B, L. B.
633, as to evidence to identify a note. '
So also, where in a deed of arrangement between the members of a
Hindu family and the childless widow of one of the co-heirs, in res-
pect of certain joint estate, in which the widow was declared entitled to
a certain sum, as the share of her deceased husband, "^or her sole abso-
lute use and benefit," it was held that the words were not to be inter-
preted as creating a separate estate in the widow ; but that the deed
Digitized by V^OOQlC
lOG EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
must be construed with reference to the situation of the parties and
the rights of the widow by the Hindu Law ; and that as she claimed and
received the money as her husband's share in the joint-property, as his
heiress and legal representative, the words meant only that the
property was to be held by her in severalty from the joint estate, and
that as a Hindu widow she took only a life-interest.— ^Sreemw^y Ra-
batty Dossee v. Sibchunder Mullick, 6 M. I. A., 1.
Where wool had been purchased by letter, the one party offering to
purchase " your wool 16 per stone,'' and the other party accepting the
offer, evidence was admitted as to the quantity of wool to which the
contract applied. " It is ciuite clear," said Campbell, C. J., " from the
letters which were put in at the trial that there was a contract
between the parties. An offer was made and was accepted, and the only
question is as to the subject-matter of the contract ; I am clearly of
opinion that when a specific thing is the subject of a written contract,
and it is doubtful on the contract what that specific thing is, any
fact may be given in evidence, in order to identify it, which was
within the knowledge of both jiajtiesJ'—Macdonald v. Longbottom,
^28 L. J., Q. B., 293.
So also where a firm had employed a traveller to solicit custom for
them over certain districts, and sued him, on a written contract, for
travelling in other districts and soliciting business for other firms,
evidence was admitted to show the meaning of the words ^'your
emploj/^ and " the ground" over which the defendant was to travel.
Erie, C. J,, said, " I am of opinion that the parol evidence is admissible,
in order to apply the contract to the matter in question. It is not
to vary or alter it : the parol evidence is admissible to show the cir-
cumstances under which the words were used" Byles, J., observed —
" The words ' are in consideration of my entering your employ.' It
does not appear from the face of the document what the employ-
ment was. It does not appear what * the ground' was. The subject
therefore requires to be identified, the contract to be applied to some
subject-matter : and that is just the case where parol evidence is
admissible. It is the case of every day occurrence in the construction
of a ■w'i\\"—Mumf(yrd v. Gething, 29 Z. J., C. P., 105.
So also, where there is a written contract to keep premises in repair,
evidence may be given as to the condition, age, &c., of the pre-
mises in calculating the repairs contracted to be done. — Payne v.
Haine, 16 M. dc Ir., 541. So, again, where delivery of goods or
other performance is to take place within a "reasonable" time,
evidence of the circumstances of the case is admissible to show what
was reasonable.— i^Wis v. Thompson, Z M. ds TT., 445. Extrinsic
evidence is sometimes admissible for the purpose of showing that
what is osteiisibly recoverable on a document is not really recoverable.
Thus, where Bills of Exchange were drawn against goods sold, and
the bill of lading deposited as security that the Bills of Exchange
should be duly such : on the bills being dishonored the holders sold
the goods, and claimed against the defendant's estate the whole
amount recoverable on the Bills of Exchange. Evidence was admit-
ted to show the circumstances under which the Bills were given, and
that the holders were entitled to claim only the balance due after
sale of the goods.— /w re ShibcJiandra Mulih 8 B, L. ^., 30.]
Digitized by VjOOQIC
SEC. 93.] EXCLUSION OF OIUL BY DOCUMENTARY 107
EVIDENCE.
93. When the language used in a document is,
Exclusion of on its face, ambiguous or defective,
evidence to ex- evidenco may not be given of facts
SmWgiTouaToTu^ which would show its meaning or sup-
^^^' ply its defects.
Illustrations,
(a.) A agrees in writing to sell a horse to B for ' Rs. 1,000 or Rs.
1,500.
Evidence cannot be given to show which price was to be given.
(6.) A deed contains blanks. Evidence cannot be given of facts
which would show how they were meant to be filled.
[This section will not have the effect of excluding evidence to
explain abbreviations, illegible words, obsolete or provincial expressions,
&c., which may in one sense be said to be " ambiguous or defective
language," as to which, see Section 98. It applies to cases (1) in which
either no meaning at all has been expressed, the sentence naving been
left unfinished, as e. g., where there is a " grant of ^to A" or
a "grant of Blackacre to ~ ;" or (2) where, though the language
is intelligible, it is such as to give rise to a plain and obvious uncer-
tainty of meaning, as when, e. g., a man contracts to sell " one of my
horses" or " a horse for Rs. 1,000 or Rs. 1,500." Here, as the language
expresses no definite meaning, to bring in evidence as to what the
intention of the person using it was, would be, not to interpret words,
but to conjecture as to intentions, and this the section forbids.
" An agreement is not to be deemed unintelligible because of some
error, omission or mistake in drawing it up if the real nature of the
mistake can be shown so as to make the bargain intelligible. Thus,
in Coles v. Holme, a bond to pay 7770 was allowed to be corrected by
adding the word pounds," the recital in the condition showing that
that must have been the meaning of the parties."— ^e^y., 38.
Evidence may be given to show that language, apparently ambi-
guous, is not ambiguous when taken in connection with the facts to
which it refers. Thus in the case of a legacv to " one of the children
of A by her late husband B," evidence would be admissible to show
that A had only one son by B, and that this fact was known to the
testator, and thus that the expression, though apparently ambiguous,
was not really so, since it did sufficiently identify the object of the
legacy ; if, however, A had more than one child by B, the meaning
would be ambi^ous and evidence of the intention of the testator
would be inadmissible.— i?room, Z. M,, 473.
When a Bill of Exchange purported, in the body of it, to be drawn
for two hundred pounds, but the figures at the top were J245, and
the stamp was for the larger amount ; Held that evidence of the inten-
tion of the parties to draw the bill for the larger amount was
inadmissible, and that the sum mentioned in words m the body of the
bill must be taken as that for which the bill was dTSiyrn^—Sandersoti
v. Piper, 7 iScott, 408.
Digitized by VjOOQIC
108 EXCLUSION OF ORA-L BY DOCUMENTARY [CH. VI,
EVIDENCE.
** The question whether language is ambiguous must depend mainly upon
this whether it is ambiguous when addressed to a person competent to
interpret language. Words cannot be ambiguous, because they are unintel-
ligible to a man who cannot read, and, witlun the same reason, words can-
not be ambiguous merely because the Court, which is called upon to explain
them, may be ignorant of a particular fact, science or art which was
familiar to the person who used the words, and a knowledge of which is
therefore necessary to a right understanding of the words he has used
It must, therefore, it is conceived, be admitted that a Judge is not compe-
tent to explain a testator's words, unless he has cognizance of those
extrinsic facts, with reference to which a testator expressed himself : and,
consequently, that when the meaning of the words, aided by the light
derived from the circumstances of the case, is certain there an ambiguity
cannot with truth or propriety be said to exist." — Wigram, 106.]
94. When language used in a document is plain
Exclusion of in itsclf, and when it applies accurately
evidence against ^q existing facts, cvidcnce may not be
application of . x i. Ii. a -i. j. x
document to ex- givcu to show that it was Dot meant
istiDg facts. iQ apply to such facts.
Ill2istration.
A sells to B by deed * my estate at Rampore containing 100 bigds.'
A has an estate at Hampore containing 100 bigds. Evidence may not
be given of the fact that the estate meant to be sold was one situated
at a different place and of a different size. ,
[The rule as laid down by V. C. Wood as to Wills is that " when any
subject is discovered which not only is within the words of the
instrument, according to their natural construction, but exhausts the
whole of tnose words, then the investigation must stop ; you are
bound to take the interpretation which entirely exhausts the whole
©f the series of expressions used by the testator, and are not permitted
to go any further.* — Webb. v. Byng., 1 Kay ana Johns., 580.
But this does not have the effect of excluding evidence to explain
the meaning of language which, though apparently plain, is really
used in a technical or peculiar sense. See note to Section 98.]
95. When language used in a document is plain
Evidence as to ^^ itsclf, but is Unmeaning in reference
document un- to existing facts, evidence may be
^^cT?(? exLt^ given to show that it was used in a
*acts. peculiar sense.
Illustration.
A sells to B by deed * my house in Calcutta.'
A had no house in Calcutta, but it appears that he had a house at
Howrah, of which B had been in possession since the execution of the
deed.
These facts may be proved to show that the deed related to the
Louse at Howrah.
Digitized by VjOOQIC
SEC. 94f — 95.] EXCLUSION OF ORAL BY DOCUMENTARST 109
EVIDENCE.
[Thus, where a written contract, dated October 24th, purported to
indemnify against a bill, described as payable three months from that
date : evidence was admitted to show that there was such a bill as
described, but dated October 25th, and that that was the bill to
which the indemnity was intended to apply, notwithstanding the
discrepancy in date.— Fay v. Jltarne^ 32 X. J^, (7. P., 34.
Under this section, it is ai)prehended, evidence will be admissible,
in cases of inaccurate descriptions of specific things or persons, to show
who or what the thing or person, so inaccurately described, really is.
In the case of Wills, (to which when made under Act X of 1865, these
Sections do not apply) the English Courts have gone great lengths in
carrying out the mtentions of the Testator, when a person or thing,
inaccurately described, can be ascertained from extraneous circum-
stances. The same principle would, under this section, be applied to
deeds and instruments other than Wills regulated by the Indian Suc-
cession Act, and some examples of its application from the English
decisions may be useful Thus a legacy given to Catharine Eamley
was claimed by Gertrude Yardlev, and awarded to her on its being
shown that no such person as Cfatharine Eamley was known to the
testator, that the testator was in the habit of calling the claimant
Gatty, which might easily have been mistaken b}^ the person who
drew the Will for Katy, and on other-evidence showing that Gertrude
Yardley was the person really meant : in the same way a legacy to
Mrs. and Miss Bowden of Hammersmith, widow and daughter of the
late Revd. Mr. Bowden," was claimed by Mrs. Washboume and her
daughter, on its being shown that Mrs. Washboume was daughter of
Mr. Bowden, that Mrs. Bowden had been dead for many years and
that since her death no one of the name had resided at Hammer-
smith, and that the testatrix had been in the habit of confounding the
names of the two families, and was in the habit of calling Mrs. Wash-
1[)oume by her maiden name.
So again a devise to the second son of Edmund Weld of Lulworth
was awarded to the second son of Joseph Weld of Lulworth on proof
that the testator had been in the habit of calling the possessor of
Lulworth " Edmund."
Wherever under this and the following sections evidence is admis-
sible to explain a document, oral statements of the person making the
document are admissible, and it matters not whether those statements
are prior to, contemporaneous with, or subsequent to the making of
the document. " They may of course have more or less weight
according to the time and circumstances under which they were made :
but their admissibility depends entirely on other considerations."—
Atlm V. Allm, 12 A, & E., 451.
It has sometimes been contended that where a person or thing is
named, and an inaccurate description is added, the name shall invari-
ably prevail as against the descnption. There is, however, nothing to
sanction such a view. " I think," sajrs Lord Campbell speaking of
such cases, " that there is no presumption in favor of the name more
than of the demonstration. Upon referring to the numerous cases
that have been cited at the bar, it will be found that there are more
instances in which the demonstration prevailed than in which the
name prevailed."—/>ra^*e v. Drake; % H, L. C. 17.]
Digitized by VjOOQIC
110 EXCLUSION OF ORAL BY DOCUMENTARY [CH. VI,
EVIDENCE.
96. When the facts are such that the language
„ .^ , used might have been meant to apply
Evidence asto, ^ j u ., i ^ "^
application of to any onc, and could not have been
language which meant to apply to more than one, of
can apply to one , -^^ -^ ... . , '
only of several Several pcrsous or things, evidence
persons. jj^g^y \^q given of facts which show
which of those persons or things it was intended to
apply to.
IllusiratifmB,
(a,) A agrees to sell to B for Rs. 1,000 " my white horse." A has
two white horses. Evidence may be given of facts which show
which of them was meant
(h,) A agrees to accompany B to Hyderabad. Evidence may be
given of facts showing whether Hyderabad in the Deccan or Hydera-
bad in Scind was meant.
[This will include statements by the person using the language, as,
by Section 3, ^' that a man said certain words is a fact.'' See also
note to Section 95.]
97. When the language used applies partly to
one set of existing facts, and partly to
appHcatkm *^o f another set of existing facts, but the
language toone of whole of it docs not apply correctly
two sets of facts , .,-• . , i "^ • .
to neither of to Cither, evidence may be given to
which the whole ghow to which of the two it was meant
correctly apphes, , ,
to apply.
Illustration,
A agrees to sell to B * my land at X in the occupation of Y.' A has
land at X, but not in the occupation of Y, and he has land in the
occuijation of Y, but it is not at X. Evidence may be given of facts
showing which he meant to selL
[According to the English Law, in cases such as these, although
extrinsic evidence of the surrounding circumstances may be received,
for the purpose of ascertaining to which set of facts the language
refers, evidence of the avihon^s declarations of intention is inadmis-
sible.—TapL, § 1109. This distinction is not, apparently, preserved in
the present Act.
This rule of construction was carried a great length, in its appli-
cation to Wills, in an English case. A devise was made to the testa-
tor's nephew for life, remainder over to *' Elizabeth Abbott, a natural
daughter of Elizabeth Abbott of GoUingham, single woman, who had
formerly lived in his service." Elizabeth Abbott, the mother, had,
at the date of the Will, two children, a natural son of whom the testa-
tor's nephew was supposed to be the father, and a legitimate daugh-
Digitized by VjOOQIC
SEC. 96—98.] EXCLUSrON OF ORAL BY DOCUMENTAKY 111
EVIDENCE.
ter. The natural son was held entitled under the devise, though
neither sex nor name applied to him,— Eyanv. ffannam, 10 Beav,^ 536.
So a devise "to my dear wife Caroline" by a man, who had gone
through a ceremony of marriage with a person named Caroline in the
lifetime of his real wife, was held to pass the devised property to the
person named Caroline.— Z>oe v. Bouse, 5 C. £., 422 ; Tai/L, § 1102.]
98. Evidence may be given to show the meaning
Evidence as to of illegible or not commonly intelli-
Sr^L^tS:; giWe characters, of foreign, obsolete,
&C. technical, local, and provincial expres-
sions, of abbreviations(i) and of words used in a pecu-
liar sense. <2)
IlhiatrUtiqji,
A, a sculptor, agrees to sell to B * all my mods.' A has both
models and modelling tools. Evidence may be given to show which
he meant to sell.
[ (1) When an expression used in a document has a technical mean-
ing, parol evidence may be given to show that it is used in its techni-
cal and not in its ordinary meaning in common parlance, although it
may be perfectly clear and unambiguous in itself. So when the
lessee of a mine covenanted to get the whole of the mine "not
deeper than the level of the mine at a particular point" parol evi-
dence was admitted to show that amongst miners " leveF' had a
technical meaning different from the ordinary signification of hori-
zontal line. — Clayton v. Grey son, 5, A. tk K, 302.
So in a memorandum about a horse race, evidence was admitted to
show that the words " across country" meant that the riders were to
jump the obstacles and not go through gates. — Evans v. Fratt,
ZM.dh G., 759.
So also evidence has been admitted to show that by usage of the
Hop-trade " ten packets of Kent hops at J5,'' means at " 6£ per
cwt.," that " months" in a Charter-paity means " calendar months,"
and that " days" in a bill of lading means " working days ;" and in
the same way special technical meanings have been proved in the case
of the phrases " duly honored," as to a Bill ; " in turn to deliver" in a
Charter-party, "weekly accounts" as meaning, in a certain trade,
accoimts of particular work only ; a " bale of cotton" as meaning a
" bafif* in the Alexandrian Trade, and a compressed bale in the Calcutta
Trade. — Tayl, § 1 062. So, where in a lease as to a rabbit-warren, the
lessee covenanted to leave 10,000 at the expiration of the lease, evi-
dence was admitted to show that according to local usage 1,000 meant
1,200 when applied to rabbits. — 3 B. dk A., 728.
Evidence of former transactions between the same parties can be
received for the purpose of explaining the meaning of the terms
used in their written contract.— J^owrwc v. Gatliff, 11 &. <i& F,, 45.
(2) Thus evidence was admitted to show the meaning of the letters
P. P., at the end of a bet, viz., Play or Pay, that is to say, run the match
or pay the het^-Daiiitree v. ffutchinson, 10 M, and W., 85. And
Digitized by VjOOQIC
112 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
SO where a legacy was left to " Mrs. G.,** evidence was admitted to
show that the testator was in the habit of calling a certain person
" Mrs. G.," and she was allowed to take under the initial]
99. Persons who are not parties to a document,
or their representatives in intetrest,
evideiTcJM ^ee! may give evidence of any facts tending
ment v a r y i n g to show a Contemporaneous agreement
terms of docu- . .^ , t* 1^1 3 t
mont, varying the terms of the document.
lUtistration.
A and B make a contract in writing that B shall sell A certain cot-
ton, to be paid for on delivery. At the same time they make an oral
agreement that three months^ credit shall be given to A. This could
not be shown as between A and B, but it might be shown by C if it
affected his interests.
100. Nothing in this chapter contained shall be
Saving of pro- taken to affect any of the provisions
viaiona of Indian of the Indian Succession Act (X of
rdatSg^t'o wills. 1865) as to the construction of wills.
[These are contained in Ch. XL Act XXI of 1870 extends parts of
Act X of 1865 and amongst others Chapter XI, Sections 61 — 77 and
Sections 82, 83, 85, 88—103 inclusive, to the Wills of Hindus, Jainas,
Sikhs and Buddhists in Lower Bengal and the Towns of Madras and
Bombay. It is, therefore, only to Wills other than these that the pro-
visions of the present Act apply.]
PART ra.
Production and effect of evidence.
Chapter VII. — Of the burden of proof.
101. Whoever desires any Court to givejudg-
_ , . . ment as to any legal right or liability
Burden of proof. , j x xi. • j. /• i? /
dependent on the existence of facts
which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on
that person.
Illiisirations.
(a.) A desires a Court to give judgment that B shall be punished
for As crime which A says Bnas' committed.
A must prove that B has committed the crime.
Digitized by VjOOQIC
S]EC. 100—103.] PRODUCTION AND EFFECT OF EVIDENCE. 113
(h.) A desires'a Court to give judgment that he is entitled to
certain land in the possession of £ by reason of facta which he asserts
and which B denies to be true.
A must prove the existence of those facts.
102. The burden of proof in a suit or proceeding
On whom bur- Hos on that porsou who would fail if no
den of proof lies, evidence at all weregiven on either side.
Illustrations,
{a.) A sues B for land of which B is in possession, and which, as
A asserts, was left to A by the will of C, B's father.
If no evidence were given on either side, B would be entitled to
retain his possession.
Therefore the burden of proof is on A.
(6.) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was
obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the
bond is not disputed and the fraud is not proved.
Therefore the "burden of proof is on B.
[Where execution of a deed is admitted, but defendant denies
having received consideration, the burthen of disproving such receipt
lies OH the defendant. — Sivara Maiyar v. Samu Ayar, 1 M. H, (7. ii.,
447. So, also, where in a summary proceeding between persons
claiming to be coheirs a defendant had been adjudged a coheir, the
burthen of proving his illegitimacy lies on the plaintiff's coheirs. —
Ash*ufood Dowlah v. Hyd&r Hossain Khan, H M, I, A., 109. So,
again, where a ryot digs a tank on his landlord's ground, tne burthen
of proving a customary or other right to do so lies on the ryot.— IVrrtnt
Charan Sose v. Dehnavayan, 8 B, L, JR., Ap., 69.]
103. The burden of proof as to any particular
Burden of proof ^^^^ ^^^^ ^^ *^^* porsou who wishes the
as to particular Court to boHeve in its existence, unless
^*^** it is provided by any law that the
proof of that fact shall lie on any particular person.
nivMration.
(a.) A prosecutes B for theft, and wishes the Court to believe that
B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it.
rWhere property is purchased in name of a benamidar, and all the
indsera of property are placed in his hands, and the true owner wants
to get rid of the effect of an alienation by the benamidar. the onus
lies on him to show that (1) the alienation was made without his
acouiescence, and (2) that the purchaser took with notice of that fact.
—Bkugwan DasY, Assook Singh^ 10 Sutk, C. J?., 185.
Digitized by VjOOQIC
114 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
As to the burthen of proof respecting the genuineness of an altered
document, see note to Section 62. The burthen of showing that an
alteration which appears on the face of a bill was made under such
circumstances as not to vitate it lies on the plaintiflf. — Byles on Bills,
^tk Edition, p. 304.
Where an application is made under Section 201, Criminal
Procedure Code, for attachment of a debtor's person, the onus is on
the debtor to show that he has no property, not on tiie creditor to
show that by sending the debtor to prison some advantage will be
gained.— 8 B, L, i?., 255.
Under Section 9 of Act XXVII of 1871 (Criminal Tribes) a
member of a Criminal Tribe has the burthen of proving " lawful
excuse" in certain cases thrown upon him.
The onus of showing that a compromise has been fraudulently
obtained by intimidation and false representation, is cast upon those
who seek to impeach the validity of their own deed. — Eajunder .
Narain Roe v. Bijai GovindSing, 2 M. I. A., 521.]
104. The burden of proving any fact necessary to
Burden of prov- ^^ provcd in ordcr to enable any per-
iDg fact to be son to givc evidence of any other fact
proved to make • ,? i. • i i •
evidence admis- IS on the person who wishos to give
"^^®- such evidence.
Ulustratio^is.
(a,) A wishes to prove a dying declaration by B. A must prove
B's death.
(h.) A wishes to prove, by secondary evidence, the contents of a
lost document.
A must prove that the document has been lost.
105. When a person is accused of any offence,
Burden of prov- the burden of proving the existence of
mg that case of circumstances bringing the case within
within excep. any of the General Exceptions in the
*^^^* Indian Penal Code, or within any spe-
cial exception or proviso contained in any other part
of the same Code, or in any law defining the offence,
is upon him, and the Court shall presume the absence
of such circumstances.
IllustrcUions,
(a.) A, accused of murder, alleges that, by reason of unsoundness
of mind, he did not know the nature of the act.
The burden of proof is on A.
Digitized by VjOOQIC
SEC. 104—106.] PRODUCTION AND EFFECT OF EVIDENCE. 115
(6.), A, accused of murder, alleges that, by grave and sudden pro-
vocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c.) Section three hundred and twenty-five of the Indian Penal
Code provides that whoever, except in the case provided for by sec-
tion three hundred and thirty-five, voluntarily causes grievous hurt,
shall be subject to certain punishments.
A is charged with voluntarily causing grevious hurt under section
'three hundred and twenty-five;
The burden of proving the circumstances bringing the case under
section three hundred and thirty-five lies on A.
J. . f 106. When any fact is especially
Burden of prov- 'ii.' ii i i i ^ ^ •^
ing fact especi- withm the knowledge of any person,
kdge!^*^'"'^''''" *^® burden of proving that fact is
upon him.
Illustrations.
(a.) When a person does an act with some intention other than
that which the character and circumstances of the act suggest, the
burden of proving that intention is upon him.
(b,) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.
[Mr. Taylor mentions, (as an exception to the rule that " the bur-
then of proof lies on him who substantially asserts the affirmation of
the issue.") the rule that " when the subject-matter of the allegation
lies peculiarly within the knowledge of one of the parties, that party
must prove it, whether it be of an affirmative or a negative charac-
ter, and even though there be a presumption of law in his favor." —
Taj/L, I 347. But the present section will not, it is submitted, relieve
the plaintiff from the necessity of making out his case, unless the fact
in question be so especially within the defendants' knowledge that he
alone can be expected to know about it. Thus, where A sued to
recover land of B, and B admitted that the tenure of certain lands,
which he formerly held, had passed to the plaintiffs, but denied that
the particular land in question formed part of the tenure, Markby, J.,
held that the burthen of proving that the lands in question did form
part of the tenure was on the plaintiff ; the learned Judge, in con-
sidering the English cases on the subject, expresses an opinion that Mr.
Tajrlor's statement of the law (§ 347) is scarcely borne out by the
decisions ; and he quotes a ruling of Lord Denman, C. J., in support
of his opinion. In that case plaintiff alleged that the defendant nad
hired a house from him and had covenanted to keep the house
insured, and had failed to insure. The plaintiff proved the lease and
the covenant, but not the failure to insure : and it was contended
that the onus of proving that he had insured lay on the defendant :
Lord Denman, however, considered that the plaintiff was bound to
prove the breach. — Doe, d. Bridger v. Whitehead, 8 A. dh K, 571.
Under the present section, the fact of an insurance being so especially
within the defendant's knowledge that the plaintiff could not be
Digitized by VjOOQIC
116 PHODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
expected to know about it, it is apprehended that the burthen of
proof would, in such a case, lie on the defendant.— ^AicfAar Hari v.
Kali Kant Box Chmdri, 3 B. L. R., 163.
In an action for penalties against the proprietor of a theatre for
performing a drama without the consent of the author, the onus of
proving consent lies on the defendant. — Mortons. Copeland, 24 L, «/.,
a p., 169.
So, in an action against an apothecary for practising without a cer-
tificate, the apothecary must prove his certificate. — The Apothecaries'
Company v, Bentley^ Ey, ik Mood., 159.
So, in the case of proceedings for sporting without a license. —
R V. Turner, ^ M.dh JS., 206.
But where there was covenant by a lessee " not to permit a sale by
auction on the premises," and the lessee imderlet and the undertenant
assigned his goods to certain persons who sold them by auction on
the premises, it was held in the Exchequer Chamber that the burthen
of proving the lessee^s assent lay on the plaintiff and that in the
absence of proof of this he was rightly nonsuited,— Toleman v.
Fortbury, L. R., 6 Q. B., 288.]
Burden of prov. 107. When the questionis whether
ing death of per- a man is alive or dead^ and it is shown
have iSeraiive ^^^^ ^^ ^as alivo within thirty years,
within thirty the burden of proving that he is dead
^®*^®* is on the person who affirms it.
[The Hindu Law presumed the death of a person of whom nothing
has been heard for 12 years, or, at Benares, 15 years ; the Mahomedan
Law presumed the death of a missing person ninety years after his
birth, though he had been seen last within 5 years.
These provisions are now over-ruled.]
108. [^Provided that] when the question is
Burden of prov- whether a man is alive or dead, and it
ingthat person is jg proved that he has not been heard of
, alive who has not r^ ^ i .■• t i ,
been heard of for lor seven years by those who would
seven years. naturally have heard of him if he had
been alive, the burden of proving that he is alive is
on the person who affirms it.
109. When the question is whether persons are
Burdenofproof P^^^^^^^j landlord and tenant, or prin-
as to partnership, cipal and agent, and it has been shown
igency.""^ '''''^ ^^^^ ^^^J ^^^^ ^^ou acting as such,
the burden of proving that they do not
* Added by Act X VIII of 1872.
Digitized by VjOOQIC
SEC. 107 — 110.] PRODUCTION AND EFFECT OF EVIDENCE. 117
stand, or have ceased to stand, to each other in those
relationships respectively, is on the person who
affirms it.
[When a Hindu family is admitted to have been at one time joint,
the burthen of proving it to be divided is on the person asserting it.—
1 S. W. J?., 316.]
110. When the question is whether any person
Burden of proof IS owncr of anything of which he is
as to ownership, shown to be in posscssion, the burden
of proving that he is not the owner is on the person
who affirms that he is not the owner.
[The possession, in order to fall under this section must be shown to
be something more than the mere violent seizure and occupation by a
wrong doer ; a man could not walk into another man's house, turn
him violently out, and then throw upon him the burthen of proving
himself the owner. On the same principle it has been held that mere
possession as a trespasser is not sufficient to entitle a plaintiff to
recover in a suit brought under Section 15 of Act XIV of 1859. There
must be in the plaintiff juridical, as opposed to mere physical, posses-
sion. — JDdddbhdi Narddds, The Sub-Collector of Broach, VII, Bomb.
H. C. Reports, A. C. J., p. 82. See also Sutherland v. Crowdy, 18
S. W, J?., Cr, R, 11, in which Couch, C. J., discusses the meaning
of the word "possession" as used in Section 530 of the Code of
Criminal Procedure, and quotes Domafs Civil Law, Section 2122 in
support of his view that it must be taken to include, not only actual
manual possession, but the possession of a master by his servant,
of a landlord by his immediate tenant, of the person who has the
property of the land by the usufructuary. An usufructuary would,
of course, be a person in possession within the meaning of the present
section.
But possession, other than the forcible possession of a wrong-doer,
frequently has the effect of dispensing with any other proof of title.
Thus in an action on a policy of insurance effected on a ship and
her cargo, the plaintiff may rely on the mere fact of possession, without
the aid of any documentary proof or title deeds, unless such further
proof be rendered necessanr by the opposite party adducing some
contrary evidence. — Tayl,^ § 108. So, a finder or bailee of goods may
sue for wrongful retainer.
As to the acquisition of absolute ownership by possession, see the
Limitation Act, 1871, Section 27. For the procedure to be followed
by the Magistrate in cases of dispute concerning land, houses, produce
of land, &c., see Cr. Pr. C, Chapter xl. Sections 530—535. Section 15
of Act XIV of 1859, provides that if any person has been dispossessed
of immoveable property otherwise than by due course of law, he
will, in a suit to recover possession, be entitled to a decree for posses-
sion, notwithstanding any other title that may be set up. Such a
suit must be brought within six months and does not bar further
proceedings to establish the title.]
Digitized by VjOOQIC
118 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
111. Where there is a question as to the good
faith of a transaction between parties.
Proof of good one of whom stands to the other in a
faith in transac- ... /* •• n ^ ,t t
tions where one position 01 active conndence, the bur-
tionofiSji^e'^ni d^n of proving the good faith of the
lidence. transaction is on the party who is in
a position of active confidence.
Illustrations,
(a.) The good faith of a sale by a client to an attorney, is in ques-
tion in a suit brought by the client. The burden of proving the good
faith of the transaction is on the attorney.
(6.) The good faith of a sale by a son just come of age to a father
is in question in a suit brought by the son. The burden of proving
the good faith of the transaction is on the father.
[This principle is aijplied by the English Courts to transactions
between medical practitioners and their patients, spiritual advisers
and members of their congregations, trustees and their cestuis-qm-
trust, ^ardians and wards. The Courts also regard with the utmost
suspicion dealings on the part of heirs with their expectancies.
An Indian Court would, no doubt, act properly, in such cases, in
throwing upon the other party the burthen of proving the fairness of
the transaction.
It must be observed that the rule laid down by this section applies
only in transactions between the parties ; thus where A, on attaining
majority, sued to set aside a compromise effected by his guardian in a
suit against the guardian on account of debts of A's father, on the
ground that the compromise was collusive, it was held that the burthen
of proof lay on A to show collusion and fraud, and that in absence of
proof, the suit must be dismissed.— Ze^roy Roy v. MeJUdb Ghund and
others, Priv. Coun. Mad. Jurist, May 1872.
Where a Manager of an infant's ancestral Estate has charged it by
way of loan or mortgage, no general rule as to the burthen of proving
the honA fides of the Manager can be laid down : it varies with the
circumstances of the case, and must be regulated by them. The onus
of disproving hon6, fides will not in every case be upon the person
endeavoring to set the deed aside. Thus, where a mortgagee is setting
up a charge made in his own favor by one whose power he knew to be
limited and qualified, he may reasonably be expected to allege and
prove facts presumably better known to him than to the infant heir,
viz., those facts which embody the representations made to him of
the alleged need of the Estate and the motives influencing his imme-
diate loan. — Hanooman Persad Tandy v. MU Manraj Koonwaree,
6 M, /. A,, 419. But as between the Manager and the infant the
onus of proving bond fides would, under the present section, lie, in
every case, on the Manager.
In a suit by a wife, a Mahummadan woman, against her husband to
recover the value of Company's paper, real and personal estate, the
plaint alleged, that such paper being her separate property, had been,
as she lived in seclusion, indorsed and handed over by her to her
Digitized by VjOOQIC
SEC. Ill — 112.] PRODUCTION AND EFFECT OF EVIDENCE. 119
husband for the purpose of receiving the interest thereon. The
defence of the husband was, that he had purchased such paper from
his wife, and on the indorsement and delivery, had paid ^e full
value to his wife, who had appropriated the proceeds to her own use.
It was held upon a review of the evidence, that, although the wife
failed to prove aflSrmatively, the precise case alleged by her in the
phdntj the husband was bound to show something more than the
mere mdorsement and delivery of the Company's paper, and that
from the relation subsisting between the parties the (mus probandi
was upon him to establish ; first, that the transaction which he set
up was a bond Jide sale ; and second, that he gave full value for the
Company's paper so received from his wife ; it was further held that
in the absence of proof of the husband having the means of purchas-
ing the Company's paper, he being at the time in embarrassed cir-
cumstances, and the condition of the wife, a secluded woman, that
no purchase had taken place, and that the transaction was fraudu-
lent as against her. — Moonsliee Bazloor Raheem v. Shumsoonissa
Begum, 11 J/. /. ^ ., 551.]
112. The fact that any person was born during
^. , , . the continuance of a valid marriage
Birtn during -i , t_» ii j
marriage, conciu- between his mother and any man, or
sive proof of legi- within two hundred and eighty days
"^^^^' after its dissolution, the mother re-
maining unmarried, shall be conclusive proof that he
is the legitimate son of that man, unless it can be
shown that the parties to the marriage had no access
to each other at any time when he could have been
begotten.
["Non-access" means "non-existence of sexual intercourse," not
merely non-residence in the same house : accordingly it would be
open to a person wishing to prove the illegitimacy of a child to show
either that the husband was mipotent, or that the husband and wife
had never met under such circumstances as would admit of sexual
intercourse.
According to English law " when the legitimacy of a child is the
question in dispute, the testimony of the parents, that they have or
have not had connexion, has, on the same general ground of decency,
morality, and policy, been uniformly rejected. This rule excludes,
not only all direct questions respecting access, but all questions which
have a tendency to prove or aisprove that fact, unless they are put
with a view to some diflferent point in the cause j and it applies to
the depositions of the parents equally with their vivd voce testimony."
--TayL, § 868.
Under the present Act this provision does not appear to be pre-
served : but a husband or wife might be questioned as to whether
they had access at any time when the child could have been begotten.
Such questions might in some cases fall within the scope of Sec-
tion 151.
Digitized by VjOOQIC
I
120 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
The present section, however, reproduces the English Law, so far as
regards the rule, observed in English Courts, that where access is
proved, the presumption of legitimacy cannot be rebutted by proof of
adulte^. The law will not aOow a balance of evidence as to who was
most liely the father of the cKild. — Banbury Peerage Case, 1 S. &
S. 155.]
113. A notification in the Gazette of India that
any portion of British territory has
of toritS^'^'''' been ceded to any Native State, Prince
or Ruler, shall be conclusive proof
that a valid cession of such territory took place at
the date mentioned in such notification.
114. The Court may presume the existence of
Courtmaypre- ^^7 f^^* ^hich it thinks likely to have
sume existence of happened, regard being had to the
certain facts, common coursc of natural events,
human conduct, and public and private business in
their relation to the facts of the particular case.(^)
Illustrations,
The Court may presume —
(a.) That a man who is in possession of stolen goods soon after
the tneft is either the thief or nas received the goods knowing them
to be stolen, unless he can account for his possession ; (2)
(6.) That an accomplice is unworthy of credit, unless he is corro-
borated in material particulars ; (3)
(c.) That a bill of exchange, accepted or endorsed, was accepted or
endorsed, for good consideration ; (4)
(d) That a thing or state of things which has been shown to be in
existence within a period shorter than that within which such things
or states of things usually cease to exist, is still in existence ; (5)
(e.) That judicial and official acts have been regularly performed ; (6)
(f.) That the common course of business has been followed in
particular cases ; (7)
{g.) That evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it ; (8)
(A.) That if a man refuses to answer a question which he is not
compelled to answer by law, the answer, if given, would be unfavour-
able to him j (9)
(t.) That when a document creating an obligation is in the hands
of the obligor, the obligation has been discharged. (10)
But the Court shall also have regard to such facts as the following,
in considering whether such maxims do or do not apply to the parti-
cular case before them :—
Digitized by VjOOQIC
SEC. 113— 114] PRODUCTION AND EFFECT OF EVIDENCE. 121
As to illustration (a) — ^A shop-keeper has in his till a marked rupee
soon after it was stolen, and cannot account for its possession specifi-
cally, but is continually receiving rupees in the course of his business :
As to illustration (b) — A, a person of the highest character, is bribed
for causing a man's death by an act of negligence in arranging certain
machineiy. B, a person of equally good character who also took part
in the arrangement, describes precisely what was done, and admits
and explains the common carelessness of A and himself :
As to illustration (6)~A crime is committed by several persons.
A, B and C, three of the criminals, are captured on the spot and kept
apart from each other. Each ^ves an account of the crime impli-
cating D, and the accounts corroborate each other in such a manner as
to render previous concert highly improbable :
As to illustration (c) — A, the drawer of a bill of exchange, was a
man of business. B, the acceptor, was u young and ignorant person,
completely under A*s influence :
As to illustration (d) — It is proved that a river ran in a certain
course five years ago, but it is known that there have been floods since
that time which might change its course :
As to illustration (e)— A judicial act, the regularity of which is in
question, was performed under exceptional circumstauices :
As to illustration {/y—The question is, whether a letter was received.
It is shown to have been posted, but the usual course of the post was
interrupted by disturbances :
As to illustration (g) — A man refuses to produce a document which
would bear on a contract of small importance on which he is sued, but
which might also injure the feelings and reputation of his family :
As to illustration (h) — A man refuses to answer a question which he
is not compelled by law to answer, but the answer to it might cause
loss to him in matters unconnected with the matter in relation to
which it is asked :
As to illustration (t) — ^A bond is in possession of the obligor, but
the circumstances of the case are such that he may have stolen it.
[(1) The presumptions mentioned in Illustrations (a)— (») are reco|>
nized by English Law ; but they vary infinitely in co^encv, and it
depends, (as is shown in the second part of the lUustranons), on the
particular circumstances of each case whether they have any cogency
at aU. The Court is, therefore, under the present section, left at
liberty, in these and corresponding cases, to shift the burthen of proof
as it thinks fit with reference to the probabilities of the case. It may
either at once draw the inference, wmch the facts of the case, accord-
ing to the ordinary bourse of human events, prirnd facie suggest,
and so throw the burthen of proof on the party who aenies that in-
ference ; or it may, with reference to some such consideration as those
mentioned in the second half of the Illustrations, refuse to draw the
inference, and call for proof of it in the first instance from the person
who asserts it.
In order to have regard to " the common course of natural events,
human conduct and public and private business,'' the habits of the
country, disposition and manners of the inhabitants, customs of trade,
local usages, the general spirit and tendency of the existing law
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122 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
will have to be taken into account, and the probabilities in each case
thus arrived at. In India some oi the most important presumptions
are those raised in the case of the joint Hindu family. In such cases
the presumption is that the whoU property of the fajnily is joint, and
the <mus lies upon a party claiming any part of such property, as
his separate estate, to establish that fact. — Gopeekrist Gosain v.
Gunger Fersad Gomin, 6 M. I. A,, 63.
In the same case it was held that when a purchase of real estate is
made by a Hindu in the name of one of his sons, the presumption of
Hindu Law is in favor of its bein^ a benamee purchase, and the bur-
then of proof lies on the party, m whose name it was purchased, to
9how that he was solely entitled to the legal and beneficial inter^t in
it. The fact of the person, in whose name the estate was purchased,
being the real purchaser's son does not alter the presumption, as the
Engfish presumption of advancement will not apply in such a case,
thoueh tne instrument is in an English form. When, however, one
member of a Hindu joint family claims a share of property, pur-
chased by another member, on the ground that it was purchased n:om
joint funds, the Court held that, before it could be presumed from the
fact of the members having lived in commensality, that the property
was purchased from joint funds, the plaintiff was bound to show that
these were joint funds, or other ancestral property from which such
funds could be derived. — Khelat Chunder Ghose v. Koovj LallBhur.,
10 Suth, W. R.^ 329. Commensality alone is not enough to raise a
presumption that property is joint ; the existence of joint funds, out
of whicn the property might Jiave been purchased, must also be shown.
See the cases collected by Mr. Norton in the case Luximon Row
Sadasew v. MullarRow Bajee, 1 NorUm L. (7., 191.
In cases where there has been a sale of ancestral property, the ques-
tion as to the burthen of proving the necessity of the sale has been
much discussed. In the case Hanoonan Fersad Fandy v. Mt.
Bahooee Munraj Coonwaree, (6 M. I. A., 393) it was laid down
that the purchaser does not in such cases take upon himself the
entire risk of the existence of a case of necessity for alienation.
The purchaser " is bound to inquire into the necessities for the
loan, and to satisfy himself as well as he can, with whom he is deal-
ing, that the manager is acting in the particular instance for the
benefit of the Estate. The question on whom the burthen of
proof lies in such suits is, their Lordships observe, not one capa-
ble of a general and inflexible answer ; the presumption proper to
be made will vary with the circumstances and must be regu-
lated by, and be dependant upon them.''
In Modho Dhydl Singh v. Goshar Singh, 9 Suth. C. R,, 511, the
Judges laid down that where a son, under the Mitakshara Law,
sets aside a sale by his father on the ground that it was unnecessary
and that he had never acquiesced, but the purchaser claims a refund
of the purchase money on the ground that it went to the credit of
the joint estate, or was applied to removing an incumbrance bind-
ing on the heir, the burthen of proving bvlcd. application lies on the
Eurchaser. " It appears to me," said Peacock. C. J., " that the onus
es on the defendant (t. «., the purchaser) to snow that the purchase
money was so applied. I do not concur in the decision which has
been referred to from 2, Wyman's Reporter, p. 81, (Muddun GopaU
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SEC. 114.] PRODUCTION AND EFFECT OF EVIDENCE. 123
Thakow V. Ram Buksh Pandee and others) in which it is said that in
the absence of evidence to the contrary it must be assumed that the
price received by the father became a part of the assets of the joint
family : if the father was not entitled to raise the money by sale
of the estate, and the son is entitled to set aside that sale, the onus
lies on the person, who contends that the son is bound to refund the
purchase money before he can recover the estate, to show that the
son had the benefit of his share of that purchase money.''
As to the presumption of agency in the case of a Hindu wife, so as
to ms^e her contracts binding upon the husband, see 1 Norton
X. a, 9.
The presumption of law is, that the whole of the property of an
undivided Hindoo family is in coparcenary. The ombs lies on a
member of such family to prove that it was separately acquired. —
Dhurm Das Pandry v. Mussumat Shama Soondri JDiviah,
3 M. L A., 501.
A debt incurred by the head of a Hindu family residing together
is. under ordinary circumstances, presumed to be a family debt : but
wnere one of the members is a minor, the creditor, seeking to enforce
his claim against family property, must show that the debt was
incurred bond fid^y and for the good of the iBXDily.—Tandavaraya
Mudali V. Valli Ammal, 1 M. H. C. R., 398.
Where an estate was originally ancestral, belonging to a joint and
undivided Hindu family, the presumption of law that a family
once joint retains that status can only be rebutted by evidence of
partition, or acts of separation : and the ombs probandiMQ^ on the
party who claims a share in such estate to prove that it is a divided
family.— Jf<. CJieetka v. Miheen Lal^ II M, L A., 369.
Where a Hindu family came from one part of India, attended by
priests 6i its own persuasion, and settled in another, the presumption
is that it would carry with it its own usages and school of Hindu
Law : and the onvs of proving an interruption or cessation of such a
state of things would lie on the person asserting that such an
interruption or cessation had taken place. — 1 B, L, i?., P. (7., 33.
Hindu families are governed ordinarily by the law of their ori^n
and not by that of their domicile. In the case of a Mitakshara fanuly
. residing in Bengal the presumption would be in favor of its being
governed by Mitakshara law till the contrary was proved.— 12 M. I.
A., 81.
There is no presumption of authority to pledge the husband's credit
in the case of a Hindu wife, living apart from her husband on account
of his marriage to a second wife, or tor any other insufficient reason.
— Verasami Uhetti v. Appasami Ckett% 1 M, H. C. R., 379.
Wherean impartible Kaj, which had descended for generations accord-
ing to the rule of primogeniture, was confiscated for rebellion of the
reigning Rajah, and twenty years afterwards granted to C, a younger
member of the Rajah's family, it was held that though the Zemindary
must be regarded as the acquired property of C, yet that, in the
absence of evidence of an intention to the contrary, the intention of
Government must be taken to have been to restore the estate as it
existed before confiscation, and that the grant to C was not the crea-
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124 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
tion of a new tenure, but simply a change of tenant by vis major.—
Baboo B4r Pertab v. M, Eajender Pertab, 12 M. I. A., 1.
The plaintiff sought to make two purdah ladies liable on a docu-
ment which he alleged had been executed by a third person as their
agent It was held by the Privy Council (reversing the decision of
the High Court), that strict proof of the agency must be given. —
Mu9suimt Azeezoonnissa and another v. Baqur Khxin^ 10 B. L. B.y
P. a, 206.
In the absence of express contract, Mahummadan Dower is presumed
to be prompt, demandable at any time, not merely deferred,*. «.,
deuLanaable on divorce. — Tadya v. Hasanebyari, 6 M. H, C- E,, 12.
Where a son purchases property, which his father had mortgaged
and the mortgagee had.foredosed, this does not by itself raise such a
presumption of benamee as the Court can act on, the other circum-
stances of the case going to show that the purchase was a bond fide
one on the part of the son. — Faez Box Chowdry v. Fakirudin
Mahomed Chowdry, 9 B. L. B,, 457.
^' It is, however, perfectly dear that, in so far as the practice of hold-
ing lands and buying landi in th^ name of another exists^hat practice
exists in India as much among Mahomedans as among Hindoos, and
the judgment in Gopeekrist Gosain v. Gunger Persad (Srosain, and the
cases therein referred to are, at all events, authority for the proposi-
tions that the criterion of these cases in India is to consider from
what source the purchase money comes ; that the presumption is,
that purchase made with the money of A, in the name of B, is for the
benefit of A ; and that, from the purchase by a Father^ whether
Mahummadan or Hindoo, in the name of his son, you are not at liberty
to draw the presumption, which the £nglish law would draw, oi an
advancement in favour of that son. Again, the mere fact that this
property was purchased, not in the sole name of the son, b^t in the
name of the wife as well as of the son, affords a strong argument in
favour of the hypothesis that it was a Benamee purchase ; for there
was no such community of interest between the wife and the son as
would render it probable that they had been made joint owners of the
property ; and the reason for puttmg two names, rather than one, into
a trust applies almost as strongly in India as it would in this country."
—Moolvie Syud Uzhur v. Mt Beebee Ultaf, 13 M, /. A,, 246,
As to the presumption of advancement arising under English Law in
the case of a purchase by a father in a son's name, the Court said, in
IStock V. McAvoy, L. R, 15 E,C., 59^ that the strong presumption is that
the son is not a trustee, and that this can only be displaced by evidence :
any act of taking possession by the father is sufficient to displace it : in
this case, for instance, the father called on the tenant, and gave her
notice to ^uit, but afterwards allowed her to remain ; this fact, coupled
with receipt of the rents during his life by the father, was held suffi-
cient to show that the son was a mere trustee for the father.
The presumption as to a child's religion was thus stated by the
Privy Council in Skinner v. Orde, 7 m, J,, 150. " From the very
necessity of the case a child in India, under ordinary circumstances,
must be presumed to have his father's religion and \na corresponding
civil ana religious status." Accordingly the Committee confirmed
the order removing the child from the custody of her mother, who
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SEC. 114.] PRODUCTION AND EFFECT OF EVIDENCB. 125
had turned Mahmnmadan and gone through the ceremony of
marriage with a married Christian who had turned Mahummadan in
order to practice polygamy, and ordered her to be entrusted to a
guardian to be brought up in her father's religion, though i^e
professed heraeH a Mahummadan.
The presumption as to marriage and legitimacnr was discussed by the
Judicial Committee in Ramamami Ummal v. KalarUhar Natchtar, 7
M, J,y 83. In that case a ceremony of marriage had been gone through
between a Sudra Zamindar and the 1st plaintiff, who allied herself to
be of the Yellala caste, but whom the defendants allegedto be a danc-
ing girl : the Privy Council inferred that she was 7^)1 a, dancing girl, as,
in that case, the ceremony would have been not only invalid but, from
a Hindu point of view, profane ^ their Lordships also relied on the
treatment which the 2nd plaintiff, the son of tne first plaintiff, had
received at the hands of the Zamindar. It being shown that he was
treated by the Zamindar as legitimate, the burthen of showing that
he was not legitimate was thrown upon the defendants.
According to Mahomedan Law while a marriage lasts, a child of
the woman is taken to be the husband's : an ante-nuptial child is
illegitimate, but may become legitimatized by force of an acknowledg-
ment, express or implied, directly proved or presumed. The question
for the Court in such a case is whether the treatment of the child
furnishes evidence of acknowledgment. A Court would not be
justified, thoujB^h dealing with this subject of legitimacy, in making
any presumptions of fact which a rational view of the principles of
evidence would exclude. The presumption in favor of marriage and
legitimacy must rest on sufficient grounds, and cannot be permitted
to over-ride over-balancing proof s, whether direct or presumptive.
In Kkajdh Hidayat Oollah v. Ehai Jankhanumy 3 if. /. A. 295,
there was, their Lordships held, ** a consecutive course of treatment
both of mother and child for a period between seven and eight years
under circumstances in which it appeared to their Lordships next to
impossible that it would have oeen continued except from the
{^resumption of cohabitation and of the son being the issue of the
oins of Fyz Ali Khan :"— this their Lordships held tantamount to an
acknowledgment that such was the case.
In Ashrufah Dowlah Ahmed Hosain v. Hyder Eosain Khan^
11 if. T, A,y 94, the same question arose, coupled with the additional
circumstance that the alleged father, after treating the child for some
years as his legitimate son^ had afterwards turned him out and
executed a deed of renunciation whereby he declared that he was not
his son. On the whole their Lordsmps decided that the child's
legitimacy was not proved. " The case, then, said their Lordships,
must be determined on the principles of evidence which are
applicable to presumptive proof, every reasonable legal presump-
tion being made in favor of legitimacy. The force of presump-
tions of fact as evidence will vary with varying circumstances,
and cannot well be fixed by decision. The Courts have properlv pre-
sumed in many cases both marriage and acknowledgment, for to
presume acknowledgment and to consider treatment as tantamount
to it is virtually the same. The loss or destruction of evidence
by time or design is as likely to take place with respect to
acknowledgment as with respect to any other subject, and, whilst
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126 PBODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
matters of the highest import are capable of being inferred and are
inferred, from circumstances, it would be a merely arbitrary limitation
of legitimate inference to exempt this one subject from its operation.''
In this case their Lordships observed ; ** In arriving at this conclu-
sion, they wish to be distinctly understood as not denying or question-
ing the position that, acconling to the Mahomedan Law, the law
wmch regulates the riehts of the parties before us, the legitimation or
Ictf^timacv of a child of Mahummadan parents may properly be presum-
ed or inferred from circumstances without proof, or at least without
any direct proof either of a marriage between the parents, or of any
formal act of legitimization. Here, there is, to their Lordship's judg-
ment, an absence of circumstances sufficient to found or justify such
a presumption or such an inference."— 11 M, I. A,, 108.
Mere continual cohabitation, therefore, does not suffice to raise a
presumption of marriage so as to legitimize the o£kpring : the fact
of a marriage taking place excludes any presumption which the facts
might raise of a previous marriage having taken place.
A Mahummadan cohabited for manv years with a Mahummadan
woman who had been a prostitute and who lived in his house. At
his death she claimed to be his wife, and called witnesses to move
an actual marriage, but which fact she failed to establish. Held,
that the Court of last resort could not presume, in such circum-
stances, that a woman, once a concubine, had, merely by lapse of
time and propriety of conduct, become a wife, and that the (ordinary
'legal presumption was that there had been no marriage* — 11
J^/.ii.,195.
Where a testamentary document showed a distinct intention on the
part of the testator that he should be represented by his daughter's
line, shoiUd that line continue, but made no provision for his represen-
tation in case of the failure of the daughter's line, it was held that the
same reasons, which justify a presumption in favor of an authority
to adopt in the absence of express permission, are powerful to exclude
the presumption of a prohibition to adopt when, on a new and imfor-
seen occasion^ the religious duty arises : and that^ a contingency
having arisen for which the testator failed to provide, the widow^
§ower to adopt must be regulated by the ordinary legal presumption. —
^he Collector of Madura v. Mootoo Hamalinga, 12 M, L -4., 397.
In Ba^'ah Chundernath Roy Bahadar v. Koar Govindnath JRou
and others, 7 M. «/., 428, their Lordships, in the Privy Council,
discussed sevend presumptions, which arose in the case, as to an
authoritv to adopt, alleged to have been conferred on his wife,
and authority to manage conferred on his mother, by the Rsgah.
The B^'ah was shown to have been on ill terms with his
mother, which suggested the inference that he would not confer
such a power on her : but against tMs was put the consideration
that it was natural that a revulsion of feeling should come over
him as death approached and that he should desire reconciliation.
Then it was argued, why should he entrust the mana^gement to his
mother, whose management had so displeased him in his lifetime : to
this it was replied that what had displeased him was h^ interference
and her desire to manage, and that this was quite consistent with his
thinking her the best person to manage after his death. Then the
inference of invalidity arising from non-registration was shown not to
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SEC. 114.] PRODUCTION AND EFFECT OF EVIDENCE. 127
be a strong one : next the Committee discussed an inference, grounded
on the fact that the adoption did not take place till six or seven years
after the Rigah's death. This was explained by the fact the widowhad
a daughter, and that, if that daughter had married and had a son, that
son might nave performed the funereal rites : and though the widow
might have neglected her duty in waiting so long, the stronger her
dutv to adopt, the less likely was it that the Rajah would leave her
witnout the power to adopt.
As to the presumptions arising in the case of an adoption under a
Will where the adoption had been acquiesced in for a long series of
years, their Lordships in the Privy Council, in Rajendro Nath Holdar
V. Joaendro Nath Banetjee, 14 M. I. A,, 67. made the following
remarks ; " We, therefore, find that for a period of twenty-seven years
this Will was, with the exceptions I have mentioned, acted upon and
recognized by the whole of the family of Kalli Prosad Holoar. and
that the legal status of the appellant was acquired under it with the
knowledge of all the members of the family. If the document had
been a fabrication, and if there were persons who might have inter-
vened and have contested the Will, the presumptive heir, who was in
existence before his title was defeated by the birth of the present
contesting respondent, mi^t have come forward in one way or
another and contested the WilL Therefore, there arises, from all these
circumstances, a very strong presumption, which their Lordships
do not feel themselves at liberty to disregard, in favour of the Will.
No doubt, these circumstances, as the law stands, are not conclusive
against the first respondent He has the right to call upon the
appellant, the defendant in the suit, to prove his title ; but their
Lordships cannot but feel that while he has the extreme right,
every allowance that can be fairly made for the loss of evidence
during this long period, by death or otherwise — every allowance
which can account for any imperfection in the evidence — ought to be
made ; and. on the other hand, that in testing the credibility of the
evidence wliich is actually given, great weight should be given to all
those inferences and presumptions which arise from the conduct of tibe
f anuh; with respect to the Will and to the acts done bv them under
the Will. The case seems to their Lordships, to be analogous to one
in which the legitimacy of a person in possession is questioned a
very considerable time after his possession has been acquired, by a
paity who has a strict l^pl right to question his legitimacy. In such
a case tiie defendant, m order to defend his status, should be
allowed to invokp against the claimant every presumption which
reasonably arises from the long recognition of his legitimacnr by
members of the family or other persons. The case of a Hmdoo claim-
ing by adoption is perhaps as strong as any case of tiie kind that can
be put ; because wnen, under a document which is supposed and
admitted by the whole family to be genuine, he is adopted, he loses
the rigfatfr— he may lose them altogetiaer— which he would have in his
own family, and it would be most unjust after a long lapse of time
to deprive him of the status, which he has acauired in the family into
whidh he has been introduced, except upon the strongest proof of the
alleged defect in his title."
The fact that a Will was duly read over to a capable Testator, or
otherwise brought to his notice, on the occasion of its execution,
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128 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
coupled with his execution of it, is. in the absence of fraud, conclusive
proof of his approval, as well as of his knowledge of the contents.—
Gtuirdhoftue v. BlacJklum, L. H., 1 Pr., 117.
There are various presumptions as to Wills which are recognized
by the English Courts. Where unattested alterations appear on the
face of a Will and no information can be given, and were are no
circumstances to show when the alterations were made, the
presumption is that they were made after the execution of the
WilL--4ifoo.P.(7.,419.
Where a Will is executed in several separate sheets and the last
only is attested, the presumption is that all the sheets were in the
room at the time of attestation. — WUliamt^ Executors, 84 — 86 \ Stoked
Indian Succession Act, 32. As to alterations the general presimip-
tion is that, when alterations are in pencil, they are deliberative, when
in ink that they are real and conclusive. — Ibid. 27. So the destruction
or mutilation of a Will raises a presumption of the revocation of a
codicil ; but this may be rebutted by showing that the testator
intendea the codicil to operate, notwithstanding the revocation of the
Will. — Williams on Exors., 135. So the destruction of one of two
duplicate Wills is presumed to be a revocation of both. A Will found
mutilated in a testator's custody is presumed to have been mutilated
by himself ; and if a testator has a Will in his custody, and it cannot
be found after his death the presumption is that he destroyed it
himself. — Stokes, 40.
Where a plaintiff fails to make out his case^ the presumption will
be in favor of the defendant ; thus, e. g.. in an action for money lent, the
only evidence was that plaintiff handed defendant a bank note, the
amount of which did not appear. The Jury was directed to presume
the note to have been one for £5, tiiat being the smallest in circula-
tion.— Xoii^^on V. Stoeeney, 8 Jur.y 964.
In actions or prosecutions for negligence, the mere fact <^ injury
having been occasioned is not enough to throw the burthen of dis-
proving nediigence on the defendants : as «. ^., if a person sues for
injuries inmcted by a carriage in the streets, he must show that the
accident arose from the defendant's negligent driving. An accident,
however, may occur under circumstances which throw the burthen of
disproving n^ffligence on the defendant in the first instance : as «. ^.,
where a barrdT was let fall from a window on the plaintiff as he was
walking in the streets. — 83 L, «/., Ex,, 13.
" The Court of Admiralty recognizes certain presumptions, which
ought to be home in mind, as they have the effect of technically
shSting the burthen of proof. Thus, in cases of collision, if one of
the vessds be shown to have been at anchor, that fact so far raises a
presumption in her favour, as to impose on the other vessel the
necessity of making out her defence. So, if a ship be proved to have
been in stays at the time of the collision, she is presumed to have
been unable to avoid it \ and the burthen of proof rests on the oppo-
site side to establish, either that the vessel was improperly put in
stays, or that the dama^ was occasioned by stress of weather, or by
other unavoidable accident. Again, if a salvor's vessel has been
injured or lost while en^ed in the salvage service, the Court of
Admiralty presumes, pnrnA fade, that such injury or loss was caused
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SEC. 114.] PRODUCTION AND EFFECT OF EVIDENCE. 129
by the necessities of the service, and not by the salvor*s default." —
Tayl, § 162^.
Sanity is presumed, but insanity once proved, the burthen lies on
assertion of lucid interval to prove it.
There is a presumption in the Punjab that, in Regular Settlements
made before 1st June 1872, all forests, unclaimed, unoccupied, deserted
or waste lands, quarries, spontaneous produce and other accessory
interests in land (whether included within the boundaries of an estate
or not) belong to Government, .unless provision is expressly made
to the contrary. See Act XXXIII of 1871, Section 38. The section
further points out how this presumption may be defeated.
The fact of a vendor, consigning goods, making a bill of lading
deliverable to the order of the vendor, is primd facie evidence of his
intention to preserve his jw5 c^wponcTwt, and to prevent the owners
ship passing to the purchaser. This presumption, however, may be
rebutted by showing that the vendor in making the Bill of Lading
payable to his order, did so as agent for the vendor, and did not
intend to retain control of the property. — Bery'.y 289.
A strong inference is often to be drawn against a party who does
not come forward as a witness, «. g. in Rughoohar Dutt Ghowdry v.
Narain Ghowdry ^ 7 M. J,, 345, ttie plaintiffs proved the execution of
a bond by their own evidence and that of five attesting witnesses.
Against this the defendants set up a counter case of forgery, supporting
it by hearsay and untrustworthy evidence, but not directly contradict-
ing the plaintiff, and not venturing themselves into the witness box,
to deny the signature. The original Court found for plaintiff, but the
High Court reversed the decision : the decision of the High Court
was reversed by the Judicial Committee.
As to the presumption in the case of letters shown to have been
entered in due course in a letter, receipt or despatch book, see
Section 16 and note to Illustration (b). The question of the weight
to be attached to the fact that a letter was posted as evidence of its
having been received was recently discussed in The Imperial Loan
Gompany of Marseilles, L, R.. 15, E, C, 18, it was proved that the
letter was despatched and tliat other letters similarly sent arrived
duly, and the Court held that the unsum)orted statement of the
addressee, denying its receipt, was not sufficient to get rid of the
strong presumption that the letter had arrived at its destination.
There was some evidence of unbusiness-like conduct on the part of
the addressee, and also of his having been in a confused state of mind,
and the Court, accordingly, though not disputing his respectability,
found that the letter had been received. In India the presumption
would, perhaps, be scarcely so strong.
Where it is shown in cases of suits on bills of exchange by defend-
ants' evidence that a bill was originally infected with fraud ot
illegality, then the title of the original holder and that of every
other holder which reposes on his title being destroyed, the burthen
lies on the plaintiff to show that he or some person, under whom he
claims, gave value for the bill. But when the question is whether
the plaintiff, the transferee ha4 notice of the original illegality or
fraud, and the plaintiff has shown that he gave value, then if the
defendant wants to impeach plaintiff's title by alleging notice of fraud
or illegality, it is for defendant to prove it--Byks, 113.
Digitized by VjOOQIC
130 PRODUCTION AND EFFECT OF EVIDENCE. [CH. VII,
Where a document is required by law to be stamped at the time
when it is received by the holder, and the document is produced in
Court duly stamped, the presumption is that it was duly stamped
when received, and the ontcs is on the other party to show that it
was not— Bradlaugh v. DeBin, 37 Z. J., 0, P., 146.
There are numerous so called " presumptions" which are merely
laws unde^r another form : e. g., the presumption that every one
knows the law is only another way of enacting that no one shall be
excused for ignorance of the law : the presumption that every one
contemplates the natural effects of nis own acts is tantamount to an
enactment that the Law does not care what a man may have con-
there are certain presumptions in English ._
intentions, where he has made two bequests to the same person ;
these are to a ^eat extent repeated in the Indian Succession Act,
Section 88, without any reference to a presumption. In the same
way Laws of Limitation sometimes appear as presumptions that a
claim, not put forwaird for a certain period, has been satisfied : and
title by prescription, which is generally described as resting on the
presumption of an ancient grant, is provided for by a specific enact-
ment in Act IX of 1871, Section 28.
Very many statutory presumptions belong, accordingly, not to the
Law of Evidence, but to the ordinary substantive law on the subjects
with which they are connected. There is a certain presumption as
to desertion, for instance, provided by the Native Articles of War,
(V of 1869, Section 114,) which is part of the Military Law : certain
presumptions as to the relations of husband and wife provided by
Section 21 of the Native Convert's Marriage Dissolution Act, (XXI of
1866), which are a portion of the law of marriage : a presumption of
pre-emption in all runjab Village communities. Act IV of 1872, Sec-
tion 11 : and a resumption in favor of a tenant's having a right of
occupancy, Act A XVIII of 1868, Section 6. These and other similar
presumptions must be considered not so much with reference to the
law of Evidence as the special law regulating the subject in each case.
(2) ** The (question," says Mr. Taylor, " as to what amounts to
recent possession varies according as the stolen article is or is not
calculated to pass readily from hand to hand.'' Thus where the only
evidence against a prisoner was that certain tools were traced to his
possession three months after their loss, the Jury has been directed
to acquit : in the same way possession of a horse six months after its
loss, has been held not to justify a conviction for theft. Of course
the presumption is very much weakened when actual possession is
not proved, but stolen property is merely found in an accused person's
house, as others may have placed it there. A similar presumption is
raised by recent possession in the case of other offences : e. g., in a
case of arson, the fact of property, which was in the house at the time
it was burnt, being soon afterwards found in the prisoner's house,
was held to raise a presumption that he was present and concerned
in the offence.— ^ayf., § 123.
The second part of the Illustration, * as to Illustration (a)' gives an
instance of circumstances under which recent possession raises no
presumption of guilt.
Digitized by VjOOQIC
SEC. 114.] PRODUCTION AND EFFECT OF EVIDENCE. 131
(3) Section 133, post^ provides that an accomplice shall be a com-
Eetent witness, and that a conviction shall not be illegal merely
ecause grounded on the uncorroborated evidence of an accomplice.
The second part of the Illustration, as to (6), gives a case in which
the Court might with propriety disregard the ordinary presumption
of untrustworthiness raised in such cases.
(4) The English Law raises this presumption in the case of Pro-
missory Notes and Bills of Exchange, "partly because it is important
to preserve their negotiability intact, and partly because the exist-
ence of a valid consideration may reasonably be inferred from the
solemnity of the instruments themselves, and the deliberate mode in
which they are executed."— 2^ay^., § 127.
The same presumption would, of course, under ordinary circum-
stances, arise in the case of Promissory Notes, though they are not
specifically referred to in the Illustration.
In the second part of the Illustration, the presumption that a Bill
of Exchange was drawn for good consideration is rebutted by the
fact that the relation of the parties is suggestive of unfair advantage.
The effect of such relations was described m the recent case Aylesford
V. Morris, in which the Lord Chancellor observed on the presumption
arising **from the circumstances and conditions of the parties
contracting — weakness on one side, extortion or advantage taken of
that weakness on the other— a presumption of fraud. Fraud does
not here mean deceit or circumvention ; it means an unconscientious
use of the power arising out of these circumstances and conditions ;
and when tne relative position of the parties is such as primd facie
to raise this presumption, the transaction cannot stand, unless the
person claiming the benefit of it is able to repel the presumption by
contrary evidence, proving it to have been in point of fact fair, just,
and reasonable." See also Section 111.
(5) The application of this presumption is expressly provided for,
in certain cases, under Section 109.
(6) Some of these presumptions have been expressly provided for,
as to documents, in Chapter y. Sections 79 — 90. Tne following
instances are mentioned by Mr. Broom ; " that a man, acting in a
public capacity, was properly appointed and is authorized to do so :
that Judges and jurors do nothing causelessly or maliciously : that
facts, without which a verdict could not have been found, were
proved at the trial : that the decision of a Court of competent juris-
diction was right '' Broom L. M., 849 : so, that all proceedings of
Parliament have been within the jurisdiction of the House and
agreeably to the usages of Parliament. In England the presumption
does not apply, says Mr. Taylor, " so as in any event to grtve jurisdic-
tion to inferior Courts or to Magistrates or others acting judicially
under a special statutory power ; in all such cases, every circum-
stance, required by the Statute to give juris.diction, must appear on
the face of the proceedings, either by direct averment or by reason-
able intendment."— 2^ayZ., § 126. No such provision being retained
in the present Act, it is apprehended that a Judge would be at liberty,
under this section, to presume jurisdiction in any case in which the
circumstances did not raise a presumption to the contrary.
(7) " Thus, the receipt of rent after the expiration of an old lease
raises a legal presumption of a new tenancy from year to year." Ser-
Digitized by VjOOQIC
132 ESTOPPEL. [CH. VIII,
vants, where nothing to the contrary appears will be presumed to
have been hired on the terms locally usual ; letters are presumed to
have been posted according to the Postmark ; and a letter duly
posted will be presumed to have reached its destination. See arUe,
Sections 16 and 88. •
(8) So. in the case of a Trustee or Agent or other person liable to
account, destroying accounts, or failing to keep proper accounts, the
strongest presumption, which the nature of the case admitted oi would
be made against nim. So also where the person in command oi a ship,
affecting to be neutral, destroys her papers, there is presumption against
her neutrality ; in the same way on the principle that omnia proesumun-
tur contra spoliatorem where the finder of a lost jewel refuses to pro-
duce it, the presumption raised against him is that it is of the highest
value of its kind ; his conduct is attributed to the knowledge that the
truth would operate against him. — TayL, § 101.
(9) As to the inference to be drawn from a witness' refusal to
answer question as to character, see post, Section 148. See also
Criminal Procedure Code, Section 343, as to inference from an accused
person's refusal to answer.
(10) This presumption is already sanctioned by the Courts of this
country. " A Bill having got back into the acceptor's hands is pre-
sumed to have been paid :— it is sufficient evidence of payment for
the acceptor to produce the Bill." — Shearman v. Fleming, 5 B. L. R,y
635.]
CHAPTER VIII.
Estoppel.
115. When one person has, by his declaration,
act or omission, intentionally caused
8 opp« • ^j. permitted another person to believe
a thing to be true and to act upon such belief, neither
he nor his representative shall be allowed in any suit
or proceeding between himself and such person or his
representative to deny the truth of that thing.
IlliLstration,
A intentionally and falsely leads B to believe that certain land
belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the proper^ of A, and A seeka to set
aside the sale on the ground that, at the time of the sale, he had no
title. He must not be allowed to prove his want of title.
[So where members of a joint Hindu family, being aware of a trans-
action with the joint property by the Manager or one of their Body^
acting ostensibly as owner, he by, they cannot afterwards repudiate
it.— 1 NoHorCs X. C, 202.
Thus, where beneficial owners permit the Benamidar to deal with
the property as his own and borrow money on it, the beneficial
owners cannot recover from the lender who has acted in good faith
and obtained a decree in satisfaction of which the land is sold. —
Nundum Lai v. Taylor, 1 Suth., (7. R., 37, R. C.
Digitized by VjOOQIC
SEC. 115.] ESTOPPEL. 133
So a man, allowing goods to be supplied to a woman as his wife,
cannot afterwards set up that she is not : and a woman, giving her-
self out as married to a man, and thus obtaining gooas on credit,
could not, on his bankruptcy, deny the marriage and claim the goods
as her own. According to English Law a woman, to whom goods have
been supplied on the strength of her representations that she was a
single woman, may get rid of her liability by showing that at the time
of the contract she was married ; because, it is said, her misrepresen-
tation does not affect her incapacity to contract This exception is
not preserved under the present law, and apparently, whenever a
woman can be sued, she wi^ be estopped under this section from
denying any statement of hers by whicn she had succeeded in obtain-
ing aredit
The same principle would apply in cases in which the belief was
caused or allowed by a man's agent, acting within the scope of his
duties ; and this, although the principal was no party to the misrepre-
sentation or concealment, or even was himself deceived.
Nor is it necessary, in order to create an estoppel under this section,
that the person causing or permittiujg the belief of tiie other person,
shoxild himself have been aware of its untruth : he may have been
acting unwittingly and in the most perfect good faith : if the belief
has been intentionally caused and has been acted upon, the estoppel
will come into force,— Monev v. Jorden, 5 ff. L. O.j 212. In consi-
dering whether a person has by his * omission' intentionally caused or
permitted a belief, it will be necessary to consider what, under the
circumstances, was his duty as to disclosing the facts of the case. A
man is not bound to go about telling everything to everybody, but he
is bound to take reasonable precautions that his language ana beha-
viour may not mislead those with whom he has to do. " K ," said Lord
Weusleyoale, " whatever a man's real intention may be, he so con-
ducts lumself that a reasonable man would take the representation to
be true, and believe that it was meant that he should act upon it, and
did act upon it as true, the party making the representation would be
equally precluded from contesting its truth ; and conduct by negligence
or omission, where there is a duty cast upon any person, by usage of
trade or otherwise, to disclose the truth, may often have the same
effect ; as for instance, a retiring partner, omitting to inform his
customers of the fact, in the usual mode, that the continuing partners
were no longer authorized to act as his agents, is bound by sdl con-
tracts made by them with third persons on the faith of their being so
authorized." — Freeman v. Cooke, 2 Ex. i?., 654.
Three things are, therefore, necessary in order to bring a proceed-
ing within the scope of this section ; there must have been conduct
which amounts to an intentional causing or permitting belief in
another : these must have been belief on the part of that other, and
there must have been action arising out of that oelief . The House of
Lords has ruled that the principle on which this section is grounded,
does not apply to cases in which the representation is not a represen-
tation of fact, but a statement of something which the party intends
to do or not to do. In a case in which an attempt was made to prevent
a lady from enforcing a bond, which she had frequently avowed her
intention of not enforcing. Lord Brougham pointed out the distinc-
tion between a statement of a then existing intention, which is liable
Digitized by VjOOQIC
134 ESTOPPEL. [CH. VIII,
to the possibility of change hereafter, and a promise, the essence of
which IS to preclude future change. In the case under notice His
Lordship considered that the lady^s language and conduct did not
amount to a promise not to change her then existing intention. " She
simpler stated what was her intention. She did not misrepresent her
intention, and I have no manner of doubt that at the time she made
that statement, she had the intention which it is stated she possessed."
Lord St. Leonards in combating this view, maintained that '' if you
declare your intentions with reference, for example, to a marriage,
not to enforce a given ri^ht, and the marriage takes place on that
declaration, there is in point of law a binding undertaking.'' — Money
Y^J&rden, 5 E. L, (7., 210.
As to the estoppel of a legal representation, see Natha Hari v.
Jamni, 8 Bomb. A. C, 37.
" A similar doctrine," says Mr. Taylor, " prevails in Courts of
equity ; and it is there recognized as a well established rule, that if
a party, having a secret equity, chooses to stand by and permit the
apparent owner to deal with othera as if he were the absolute owner,
he shall not be permitted to assert such secret equity against a title
founded on such apparent ownership. — Tayl., § 771.
The Acceptor or Indorser of a Bill of Exchange would, it is appre-
hended, be precluded under this section, as against any person who
had been induced by such acceptance or indorsement to regard the Bill
as genuine, from denying its genuineness. As to the general estop-
pel aflTecting acceptors of Bills of Exchanges, see post, Section 117.]
116. No tenant of immoveable property, or per-
son claiming through such tenant,shall,
na^ti^d^lt*:: during the continuance of the tenancy,
be permitted to deny that the landlord
of such tenant had, at the beginning of the tenancy,
a title to such immoveable property ; and no person
who came upon any immoveable property by the
license of the person in possession thereof, shall be
permitted to deny that such person had a title to such
possession at the time when such license was given.
[But a tenant may show that his landlord had no title at a date
previous to the commencement of his tenancy : or that since the
commencement of the tenancy, the title of the landlord has expired
or been defeated : as by showing that his landlord's estate was for
the lifetime of some person, who is since dead: or that he was a
tenant at will, and that the tenancy has been concluded.— 2^a2^^., § 89.
According to English Law the estoppel in cases of this class pre-
vails, while the tenant is in possession of the premises : the present
section extends it to the continuance of the tenancy.]
117. No acceptor of a bill of exchange shall be
permitted to deny that the drawer had
ceptor^^f^biii*of authority to draw such bill or to
Digitized by VjOOQIC
SEC. 116—117.] ESTOPPEL. 135
ex<Aange, baUee endorse it ; nor shall any bailee or
cenaee. licensee be permitted to deny that his
bailor or licensor had, at the time when the bailment
or license commenced, authority to make such bail-
ment or grant such license.
Explanation (1).— The acceptor of a bill of ex-
change may deny that the bill was really drawn by
the person by whom it purports to have been drawn.
Explanation (2). — If a bailee delivers the goods
bailed to a person other than the bailor, he may
prove that such person had a right to them as against
the bailor.
[According to English Law the acceptance of a Bill of Exchange is
deemed a conclusive admission, on the part of the acceptor, of the
signature of the drawer, and of his capacity to draw. — Byles on Bills of
Exck.. 184. Under the present section the estoppel extends only to
exclude a denial of the drawer's authority to draw or indorse ; but the
acceptor might, it would appear, be estopped from denying the
genuineness of a drawer's signature, under Section 115, as against any
person whom his acceptance had induced to accredit the Bill. But
the acceptor of a Bill is not estopped from denying the signature of
the payee, or of an endorsee.
As to the general duties and rights of bailees, see Contract Act, -
1872, Chapter ix, Sections 148 — 179. The law, as laid down iii
the present section, appears to be less stringent, as regards the
estoppel of a bailee, than that of England, according to which a
bailee, who has once acknowledged the title of the bailor, is
precluded from setting up the title of a third party to the article
bailed, except in cases where the bailor has obtained the article frau-
dulently or tortuously from the third person, and where the bailee is
able to show that he was, when he acknowledged the bailor's title,
ignorant of the fraudulent or tortuous mode in which the article had
been obtained, and also that the third party has made a claim to the
article. A pledgee is, however, on a somewhat different footing.
" It seems also, says Mr. Taylor, " that where a person pledges
property to which he has no title, the pledgee is not estopped from
delivering it to the rightful owner; for in the ordinary case of a
pledge, the pledgor impliedly undertakes that the property is his
own, and the pledgee merely undertakes that he will return it to the
pledgor, provided it be not shown to belong to another. A common
carrier, too, being bound to receive goods for carriage, and having no
means of making inquiry as to their ownership, is at liberty to dis-
pute the title of the person from whom he has received them ; and
if he be sued in trover by such person he may establish his defence
by proving that he has delivered to the real owner on his claiming
them.— Tay/., § 777.
Digitized by VjOOQIC
136 OF WITNESSES. [CH. IX,
Under the present section a bailee sued by his bailor, would, it
appears, in every instance be able to plead that the bailor's title was
bad, and that he had delivered the article bailed to the rightful owner.]
CHAPTER IX.
Of Witnesses.
118. All persons shall be competent to testify
Who may tea- unless the Court considers that they
^i^y* are prevented from understanding the
questions put to them, or from giving rational
answers to those questions, by tender years, extreme
old age, disease, whether of body or mind, or any
other cause of the same kind.
Explanation. — A lunatic is not incompetent to
testify unless he is prevented by his lunacy from
understanding the questions put to him and giving
rational answers to them.
[Act X of 1873 (Oaths Act, 1873) provides that Hindus and
Mahummadans and all persons, who have an objection to an oath,
shall make an affirmation instead of an oath. The Act further
provides that a witness ma^r offer to give evidence on oath in any form
common amongst or held binding by persons of his race or persuasion,
not repugnant to justice or decency, and not purporting to affect
any third person, and that the Court may, if it thini: fit, tender such
oath : and further, that, a party may offer to be bound by evidence
^iven on any such oath, if taken by the opposite party ; and that if
m such a case the opposite party chooses to take it, the evidence so
given shall be conclusive proof as against the person who offered to
be bound.
There are various penalties, by which witnesses are compelled to
accept service of summons, to come to Court, to speak the truth, and
to produce documents when l^ally called upon to do so. As to these
in Civil cases, see C. Civ. Pro., Sections 159, 167 — 171 : and in Criminal
Proceedings. Crim. Proc. Code, Chapter xxvi Sections 350—356 : also
I. P. C, Cn. X, Sections 172—180, but note that Section 178 is
practically repealed by the Oaths Act, 1873. In addition to these
penai provisions, a party aggrieved by the refusal of a witness to attend
or to speak or to produce a document, has a Civil remedy. By Section
26 of Act XIX of 1853, any person to whom a Summons to attend and
give evidence, or produce a document is personally delivered, and who,
without lawful excuse, neglects or refuses so to attend, or who absconds
in order to avoid service of the Summons, and any person who, when
required by the Court to give evidence or to produce a document.
Digitized by VjOOQIC
SEC. 118 — 120.] OF WITNESSES. . 137
refuses to give evidence, or sign his deposition, or produce a docu-
ment in his possession, is liable to the party, at whose instance the
Summons was issued or the evidence required, for all damages,
arising from such neglect, refusal or absconding, to be recovered m a
Civil action.
An accused person may not be made a witness in his own trial,
but may be examined by the Court : (C. P. C, S. 342) and the state-
ment of one of several jointly-accusea persons, implicating himself and
some other of the accused, may be considered by the Court against all
the co-accused, ante, Section 30.]
119. A witness who is unable to speak may give
^ , .^ his evidence in any other manner in
Dumb witness. i • i i i •. • n* m i t
which he can make it intelhgible, as by-
writing or by signs; but such writing must be written
and the signs made in open Court. Evidence so
given shall be deemed to be oral evidence.
[The same rule would, it is presumed, be applicable in the case of
deaf or deaf and dumb witnesses, who might be communicated with
by special signs, provided the Court was satisfied as to the reality and
accuracy of such communication. Competence to understand the
questions put to him and to give rational answers is, under Section 118,
the one essential qualification for a witness. Deaf and dumb persons
were formerly excluded as witnesses on the presumption of their
idiotcy : it is now ascertained how groundless this presumption is.]
120. In all civil proceedings the parties to the
- , . , suit, and the husband or wife of any
sons in Civil and party to the suit shall be competent
ceedin^^*^ ^^° wituesscs. In Criminal proceedings
against any person, the husband or
wife of such person, respectively, shall be a compe-
tent witness.
[By Section 51 of Act IV of 1869, it is provided that any party may
offer himself or herself as a witness and shall be examined and may
be cross-examined like any other witness. Provision is also made for
the parties verifying their cases ^ affidavit, and for the cross-exami-
nation of the party making the affidavit. Section 62 provides that, in
petitions presented by a wife praying for dissolution of marriage on
the ground of adultery coupled with cruelty or coupled with desertion
without reasonable cause, the husband and wife respeotively shall
be competent and compellahle to give evidence of or relathig to such
cruelty or desertion. These provisions suggest the inference that,
except as provided, husbands and wives are not compellable, in suits
to which they are parties, to give evidence. But a husband or wife
who is not a party to the suit might, it is submitted, be compelled
to give evidence. See Section 122.]
R
Digitized by VjOOQIC
138 , OF WITNESSES. [CH. IX,
121. No Judge or Magistrate shall, except upon
the special order of some Court to
gii&.'^'^^*' which he is subordinate, be compelled
to answer any questions as to his own
conduct in Court as such Judge or Magistrate, or as
to anything which came to his knowledge in Court
as such Judge or Magistrate; but he may be examined
as to other matters which occurred in his presence
whilst he was so acting.
Illustrations,
(a. J A, on his trial before the Court of Session, says tiiat a deposi-
tion was improperiy taken by B, the Magistrate. B cannot be com-
pelled to answer questions as to this, except upon the special order of
a Superior Court
(b, ) A is accused before the Court of Session of having given false
evidence before B, a Magistrate. B cannot be asked what A said,
except upon the special order of the Superior Court.
(c.) A is accused before the Court of Session of attempting to
murder a Police officer whilst on his trial before B, a Sessions Judge.
B may be examined as to what occurred.
122. No person who is or has been married,
Communications shall be Compelled to disclose any
during marriage, communication made to him during
marriage by any person to whom he is or has been
married ; nor shall he be permitted to disclose any
such communication, unless the person who made it,
or his representative in interest, consents, except in
suits between married persons, or proceedings in
which one married person is prosecuted for any
crime committed against the other*
[See note to Section 120.]
123. No one shall be permitted to give any
Evidence as to evidence derived from unpublished
affairs of State. official rocords relating to any aflfairs
of State, except with the permission of the officer at
the head of the department concerned, who shall
give or withhold such permission as he thinks fit.
124. No public officer shall be compelled to dis-
officiaicommu- closc communicatious made to him in
nications. official Confidence, when he considers
that the public interests would suffer by the disclosure.
Digitized by VjOOQIC
SEC, 121—126.] OF WITNESSES. 139
125. No Magistrate or police officer shall be
Information as Compelled to Say whence hQ got any
to commission of information as to the commission of
^^^^^»- any offence.
126. No barrister, attorney, pleader or vakfl,
Professional shall at any time be permitted, unless
communications, ^th his client's express consent, to
disclose any communication made to him in the
course and for the purpose of his employment as
such barrister, pleader, attorney or vakfl by or on
behalf of his client, or to state the contents or con-
dition of any document with which he has become
acquainted in the course and for the purpose of his
professional employment, or to disclose any advice
given by him to his client in the course and for the
purpose of such employment -M)
Provided that nothing in this section shall protect
from disclosure —
(1) Any such commimication made in further-
ance of any [*illegalj purpose ;(2)
(2) Any fact observed by any barrister, pleader,
attorney or vakfl in the course of his employment
as such showing that any crime or fraud has been
committed since the commencement of his employ-
ment.
It is immaterial whether the attention of such
barrister, [*pleader,] attorney or vakfl was or was
not directed to such fact by or on behalf of his
cUent.(3)
Explanation. — The obligation stated in this sec-
tion continues after the employment has ceased.
Hlmtrations.
(a.) A, a client, says to B, an attorney,-—* I have committed forgery
and I wish you to defend me/
As the defence of a man known to be guilty is not a criminal pur-
pose, this communication is protected from (fisclosure.
* See Act XVIII of 1872, Section 10,
Digitized by VjOOQIC
140 OF WITNESSES. [CH. IX,
(6.) A, a client, says to B, an attorney, — ' I wish to obtain posses-
sion of property by the use of a forged deed on which I request you
to sue.'
This communication, being made in furtherance of a criminal pur-
pose, is not protected from disclosure.
(c.) A, being charged with embezzlement, retains B, an attorney,
to defend him. In the course of the proceeoings, B observes that an
entry has been made in A's account took charging A with the sum
said to have been embezzled, which entry was not m the book at the
commencement of his employment.
This being a fact observed by B in the course of his employment
showing that a fraud has been committed since the commencement
of the proceedings, it is not protected from disclosure.
[ (1) The communication, in order to be privileged, must have
been in the course and for the purpose of the barrister's or other
professional person's employment. Observations therefore which,
though made during such employment, were not for the purpose of
the employment, would not be privileged. Accordingly a remark by
a prosecutor that " he would give a large sum to have the prisoner
hanged," or a remark by a party after the completion of a compromise
that " he was glad that he had settled it"— would, it seems, be without
the scope of the section.
And where confidential communications were made to a lawyer,
but, from some accidental cause, he was not employed, the communi-
cation has been held not to be privileged : the same would be the
case with communications made previous to a professional person's
employment, and, of course, lyith communications made to a man
under an erroneous notion that he was an attorney.
It is not, however, necessary that there should have been " any
regular retainer, or any particular form of application or engagement,
or the payment of any fees ; it is enough ft the legal adviser be, in
any way, consulted in his professional character."— ray^., § 844.
Mere matters of observation unconnected with professional advice,
are not protected. Thus an attorney may be asked as to his client's
handwriting, even though his knowledge of it was gained in the
course of ms professional employment, or as to his identity, these
being matters of independent observation.
When two parties employ a common solicitor, the protection extends
only to such communications as are made by each to the solicitor in
the character of his own solicitoi\ not to those made to hrm as solicitor
for the other party— c. g., A and B employ C as common solicitor to
transact a sale. A, the purchaser, asks C to get the payment of the
purchase money postponed ; this communication is not protected
because it was made to C, not in his capacity of A's own solicitor, but
of B's.— Perry yj Smith, 9 M, dh TT., 683.
No hostile inference should be drawn from a refusal to let a legal
adviser disclose confidential communications : Wentwortk v. Lloyd,
(10 Jur, N, S., 963,) where Lord Chelmsford distinguishes such cases
Digitized by VjOOQIC
SEC. 127] OF WITNESSES. 141
from those in wliic)i evidence is improperly kept out of the way and
in whidi, accordingly, the presumption is against the wrongdoer.
<< The ezdusion of such evidence is for the general interest of the
community; and, therefore, to say that, when a party refuses to
permit professional confidence to be broken, everything must be i^en
most strongly against him, what is it but to deny him the protection,
whicb^ for public purposes, the law aifords him, and utterly to take
away a privilege, which can thus only be asserted to his prejudice f*
(2) So where a party, having possessed himself of the Title-deeds
of a deceased person, placed a forged Will of the deceased amongst
them, and then sent the whole to his attorney, ostensibly for the
purpose of asking his advice upon them, but reauy, as it seemed, that
the attorney might find the Will and act upon it, the English Jndges
unanimously held that the attorney was bound to produce the Will
on the trial of his client for forgery. Under the present Act such a
communication would fall within proviso (I).
(3) The protection afforded by this section and Section 129 will be
limited strictly to professional communications. It may be laid
down general^, in the language of Lord Cranworth, " that there is
no protection as to letters between parties themselves, or from a
stranger to a party, merely because such letters may have been
written, in order to enable the person to whom they were addressed
to communicate them in professional confidence to his solicitor." —
TayL, § 842.
And so, if an attorney, by the direction of his client, makes a pro-
posal to the opposite party, he may be compelled to disclose what he
stated to that party, tho^h he cannot divulge what his client had
communicated to mm.— /Skf, § 864.
So also an attorney can be compelled to discover to whom he parted
with his client's Title-deeds, and in whose possession they are. So,
for the purpose of letting in secondai^ evidence of the contents of a
document, an attorney will be bound to answer whether it is in his
possession or elsewhere in Court, even though he may have obtained
it from his client in the course of communication with reference to
the cause. And if an attorney attests an instrument which his client
executes, he may be compelled to prove the execution.]
127. The provisions of section one hundred and
Section 126 to twontj-six shall apply to interpreters,
a p p 1 y to inter, and the clerks or servants of barristers,
preters, &c. pleaders, attorneys and vakfls.
[The provisions of Section 126 do not extend to agents, not being
of the classes referred to in the section^ sent out by a party to coflect
information for the j^urposes of the suit, although the intention may
have been to put the information so collected before a solicitor. " There
is no protection," said Lord Cranworth, " as to letters between parties
themselves, or from a stranger to a party, merely because such letters
may have been written in order to enable the person, to whom they
were addressed, to communicate them in professional confidence to
his solicitor"— Goodall v. Little, 1 Simom, iT. S., 155.
Digitized by VjOOQIC
142 OP WITNESSES. [CH. IX,
Under the present section the test would be whether the person in
question was the clerk or servant of a barrister^ pleader, attorney or
vakeel, or the clerk or servant of the party : in the latter case the
section would not extend to him.]
128. If any party to a suit gives evidence therein
PrivUege not ^* ^^ ^^"^^ instance or otherwise, he
wMved by voiun- shall not be deemed to have consented
teering evidence, thereby to such disclosure as is men-
tioned in section one hundred and twenty-six ; and
if any party to a suit or proceeding calls 'any such
barrister, [*pleader,] attorney or vatfl as a witness,
he shall be deemed to have consented to such dis*
closure only if he questions such barrister, [^pleader,]
attorney, or vakil on matters which, but for such
question, he would not be at liberty to disclose.
[By the old law a party, who gave evidence in a suit at his own
instance, was deemed to have waved his privilege, and to have con-
sented to disclosure by his professional adviser of any relevant matter,
which the professional adviser would, but for such privilege, be
bound to disclose. Under the present Act the mere fact of the party's
giving evidence himself does not imply such consent : and if he calls
the Barrister, &c., as a witness and questions him, he is deemed to
consent to d^dosure by the Barrister, &c., only if he Questions him
on matters which, but for such question, he would be bound not to
disclose : and by giving evidence he does not expose himself to be
questioned about professional communications except so far as is
necessary to explain his evidence.]
129. No one shall be compelled to disclose to the
Court any confidential communication
commmiicaVio^n which has taken place between him
with legal ad- and his legal professional adviser,
^***"* unless he oflfers hunself as a witness, in
which case he may be compelled to disclose any such
communications as may appear to the Court neces-
sary to be known in order to explain any evidence
which he has given, but no others.
[Under the old law. Act II of 1855, Section 22, a party to a suit, who
offered himself as witness, was bound to produce any confidential
writing or correspondence that had passed between himself and his
legal professional adviser : such correspondence need be produced,
under the present section, only if it were necessary to explain the
witness' evidence.]
* Added by Act XVIII of 1872.
Digitized by VjOOQIC
SEC. 128—132.] OF WITNESSES. 143
130. No witness who is not a party to a suit shall
Production of ^® Compelled to produce his title-deeds
witness* title- to any property, or any document in
deeds. virtue of which he holds any property
as pledgee or mortgagee, or any document the pro-
duction of which might tend to criminate him, unless
he has agreed in writing to produce them with the
person seeking the production of such deeds or some
person through whom he claims.
[But the mere fact that the production of the document may
render the witness liable to a civil action will not justify a refusal to
produce a document : nor, apparently, will the fact that it exposes him
to a forfeiture.
Where the witness is not compellable to produce his title-deeds, he
cannot, of course, be compelled to answer questions as to their contents.
See Section 91.
Witnesses who are parties to the suit do not appear to fall within
the protection aflforded by this section.
The witness should, however, brin§ the Document to Court, and the
Judge will decide on the objection to its production. See Section 162.
As to the lien of Attorneys and others on their client's papers, see
Contract Act, 1872, Sections 171 and 221,]
131. No one shall be compelled to produce docu-
Production of mcuts in hispossession,which any other
documentswhich person would be entitled to refuse to
another person, * - •/» .i • i •
having posses- produco if they worc m his possession,
entitled to^refuse ^^l^^s such last-meutioucd porsou con-
to produce. scuts to their production.
132. A witness shall not be excused from an-
Witnessnotex- sweriug any question as to any matter
cnsed from an- relevant to the matter in issue in any
sweringongronnd "j. • • -i • • i j
that answer will suit or lu any civil or Criminal proceed-
criminate. Jng, upou the grouud that the answer
to such question will criminate, or may tend, directly
or indirectly, to criminate such witness, or that it
will expose, or tend, directly or indirectly, to expose
such witness to a penalty or forfeiture of any kind :
Provided that no such answer, which a witness
^ . shall be compelled to give, shall sub-
Proviso. • i 1 • i j^ i«
ject him to any arrest or prosecution,
Digitized by VjOOQIC
144 OP WITNESSES. [CH. IX,
or be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by such
answer.
[As to punishment for refusal to give evidence, see I. P. C, Section
179 ; for giving faise evidence, Section 193, 1. P. C, and see Criminal
Procedure Code, Schedule III, (" Alternative charges on Section 193),"
from wMch it appears to be enough to show contradictory statements
in order to secure a conviction. This is otherwise in England. —
Tayl, § 879.
A witness refusing to give evidence or produce a document is
liable to a suit for damages under Act XIX of 1853, Section 26. See
also Civil Procedure Code, Sections 169, 170.]
133. An accomplice shall be a competent witness
asrainst an accused person : and a con-
^ viction IS not illegal merely because it
proceeds upon the uncorroborated testimony of an
accomplice.
[A Judge will, however, do properly in charging a Jury in such a
case, to comment on the degree to which the evidence is in the parti-
cular case trustworthy or the reverse. His omission to do so, however,
would not be an error of law, invalidating the conviction. In Eng-
land it is usual for the Judge to advise the Jury not to convict on
the uncorroborated evidence of an accomplice ; and it is, as a general
rule, regarded as a breach of duty for a Judge not to do so.
It would, of course, be only under some special circumstances that
a conviction could be had on such evidence : but see Section 114(6.)
As to tender of pardon to an accomplicei see Criminal Procedure
Code, Sections 347, 348 and 349.]
134. No particular number of witnesses shall in
Number of wit. any case be required for the proof of
nesses. ^Uy fact.
[According to English Law a person cannot be convicted of treason,
but on the testimony of two witnesses, either both to the same, or one
to one and another to another overt act of the same treason. — TayL,
§ 869. Nor in England in charges of penury will the uncorroborated
evidence of a single witness suffice.--iS., § 876. No such rule applies
under the present law ; though, of course, it would be only under
exceptional circumstances that a conviction could safely be grounded
on such evidence.]
Digitized by VjOOQIC
SEC. 133—136.] EXAMINATION OF WITNESSES. 145
CHAPTER X.
Of the EXAMINATION OF WITNESSES.
135. The order in which witnesses are produced
Order of produ«. ^^^ examined shall be regulated by the
tionandexamina- law and practice for the time being
tion of witnesses, relating to Civil and Criminal Proce-
dure respectively, and, in the absence of any such law,
by the discretion of the Court
[As to commitments and convictions on evidence recorded partly
by one officer and partly by another, see Criminal Procedure Code,
Sections 328, 329.]
136. When either party proposes to give evidence
Judge to decide ^^ ^^J fact, the Judgc may ask the
as to admissibiu- party proposing to give the evidence
ty of evidence. -^^ ^j^^^ manner the alleged fact, if
proved, would be relevant ; and the Judge shall
admit the evidence if he thinks that the fact, if proved,
would be relevant, and not otherwise.
If the fact proposed to be proved is one of which
evidence is admissible only upon proof of some other
fact, such last-mentioned fact must be proved before
evidence is given of the fact first mentioned, unless
the party undertakes to give proof of such fact and
the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon
another alleged fact being first proved, the Judge
may, in his discretion, either permit evidence of the
first fact to be given before the second fact is proved,
or require evidence to be given of the second fact
before evidence is given of the first fact.
IlltistrcUions.
(a.) . It is proposed to prove a statement about a relevant fact bjr a
person alleged to be dead, which statement is relevant under section
thirty-two.
The fact that the person is dead must be proved by the person pro-
posing to prove the statement before evidence is given of the statement.
S
Digitized by VjOOQIC
146 EXAMINATION OF WITNESSES. [CH. X,
(6.) It is proposed to prove by a copy the contents of a document
said to be lost.
The fact that the original is lost must be proved by the person
proposing to produce the copy before the copy is produced.
(c.) A is accused of receiving stolen property knowing it to have
been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property.
The Court may in its discretion either require the property to be
identified before the denial of the possession is proved, or permit the
denial of the possession to be proved before the property is identifiecL
(d.) It is proposed to prove a fact (A) which is said to have been
the cause or effect of a fact in issue. There are several intermediate
facts (B, C and D) which must be shown to exist before the fact A
can be regarded as the cause or effect of the fact in issue. The Court
may either permit A to be proved before B^ C or D is proved, or may
require proof of B, C and D before permittmg proof of A.
] 37. The examination of a witness by the party
Examination-in. who calls him shall be Called his ex-
chief, amination-in-chief.
The examination of a witness by the
^^Cro.«.cxamina. advereo party shall be called his cross-
examination.
The examination of a witness, subsequent to the
cross-examination, by the party who
Re.examination. called him shall be called his re-
examination.
138. Witnesses shall be first examined-in-chief.
Order of exami- then (if the adverse party so desires)
St^^-re-e^: cross-examined, then (if the party
nation. calling him so desires) re-examined.
The examination and cross-examination must
relate to relevant facts, but the cross-examination
need not be confined to the facts to which the wit-
ness testified on his examination-in-chief.
The re-examination «hall be directed to the expla-
nation of matters referred to in cross-examination ;
and if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may
further cross-examine upon that matter.
Digitized by VjOOQIC
SEC. 137—143.] EXAMINATION OF WITNESSES. 147
[In America a witness can be cross-examined only as ta circum-
stances connected with his examination-in-chief. If it is wished to
examine him as to other matters, the party must make him his own
witness and use him as a witness in his own case. No such restriction
exists in England or under the present Act. As to further questions
which may be asked in cross-examination, see Section 146.]
139. A person summoned to produce a docu-
ment does not become a witness by
tion of^^pemm the mere fact that he produces it, and
c^ed to produce cannot be cross-examined unless and
a document. •i i •
until he IS called as a witness.
[By Section 153 of the Civil Procedure Code, a person, who is sum-
moned merely to produce a document, is deemed to have complied
with the summons if he cause such document to be produced instead
of attending personally to produce it.]
Witnesses to 140. Witncsscs to character may
character. ^e cross- examined and re-examined.
141. Any question suggesting the answer which
Leading ques- the pcrsou putting it wishes or expects
^^^^' to receive, is called a leading question.
142. Leading questions must not, if objected to
Whentheymuat by the adverse party, be asked in an
not be asked. examinatiou-iu-chief, or in a re-exami-
nation, except with the permission of the Court.
The Court shall permit leading questions as to mat-
ters which are introductory or undisputed, or which
have, in its opinion, been already sufficiently proved.
When they may 143. Leading questions may be
be asked. asked in cross-examination.
[According to the American Law the Court has the power to stop
leading questions being put in cross-examination to a witness who
shows an obvious bias against the party who called him, and in favor
of the cross-examiner.
Though this power is not conferred by the present law, a Judge is,
of course, at liberty to intimate that, under the circumstances, the
witness should be left to tell his own story, and, if this intmation is
not complied with, to take it into account in estimating the vjJue of
the evidence. The right to ask leading questions does not mean that
Digitized by VjOOQIC
148 EXAMINATION OF WITNESSES. [CH. X^
an advocate is, in cross-examination, to put into a witness' mouth the
very words which he is to echo back : nor ought he to assume as
proved, facts which have not been proved, or evidence given which
has not been given.— jTay^., § 1288.]
144. Any witness may be asked, whilst under
examination, whether any contract,
Evidence as to i.T_ j- -,* *^n .
matters in writ- grant or other disposition of property,
"*«• as to which he is giving evidence, was
not contained in a document, and if he says that it
was, or if he is about to make any statement as to
the contents of any document, which, in the opinion
of the Court, ought to be produced, the adverse party
may object to such evidence being given until such
document is produced, or until facts have been
proved which entitle the party who called the wit-
ness to give secondary evidence of it.
Explanation. — A witness may give oral evidence
of statements made by other persons about the con-
tents of documents if such statements are in them-
selves relevant facts.
Illustration.
The question is, whether A assaulted B.
C deposes that he heard A say to D — ' B wrote a letter accusing
me of theft, and I will be revenged* on him.' This statement is rele-
vant, as showing A*s motive for the assault, and evidence may be
given of it, though no other evidence is given about the letter.
[This section merely points out the manner in which the provisions
of Sections 91 and 92 as to the exclusion of oral by documentary evi-
dencemay be enforced by the parties to the suit.]
145. A witness may be cross-examined as to pre-
vious statements made by him in writ-
Crossexamma- . i i • j 'i- ^ ^
tion as to previ- mg or reduced into writing and rele-
^^«^*^"^®^*«^^ vant to matters in question without
^^ ^^' such writing being shown to him, or
being proved ; but if it is intended to contradict him
by the writing, his attention must, before the writ-
ing can be proved, be called to those parts of it
which are to be used for the purpose of contradict-
ing him.
[The following caution is quoted from the observations of the
Punjab Government on the Cnminal Report for 1871 :—
Digitized by VjOOQIC
SEC. 144—146.] EXAMINATION OF WITNESSES. 149
** The contradictions and transparent falsehoods of witnesses often carry
more weight with English Judges than is reconcilable with equity and a
knowledge of the character of the people. A case may be in the main
true, and would win on its merits alone, but an ignorant witness, doubtful
of the procedure of the Courts, and anxious to make his story fit the
opinion which he perceives the Judge has formed, embellishes it with
imaginary incidents, which are dissipated under Cross-examination, or con-
tradicted by other witnesses, and the case is dismissed, the Judge believing,
what is by no means necessarily correct, that a story must be false which
the witnesses seek to establish with the assistance of falsehood. It is
rather by a patient study of the character of the people and an intimate
acquaintance with their nabits and modes of thought, than by the applica-
tion of general principles of evidence, that a Magistrate can hope to discri-
minate between truth and falsehood in an Indian Law Court."
It is, of course, often important that, when a witness is under cross-
examination as to his previous statements, the fact of their having
been reduced to writing should be concealed from him. It is only
reasonable, however, that when he has given his answer, he should,
before the document, which is to be used for the purpose of contra-
dicting him, is proved, be allowed to see it, and have the chance of
correcting himseK. Questions under this section may, with the per-
mission of the Court, oe asked of the witness by the party who called
him. Section 154.]
146. When a witness is cross-examined, he may,
Questions law- ^^ addition to the questions herein-
fui in crossexa- before referred to, be asked any ques-
mination. ^-^^^^ ^j^j^j^ ^^^^
(1) to test his veracity ;
(2) to discover who he is and what is his position
in life, or
(3) to shake his credit, by injuring his character,
although the answer to such questions might tend
directly or indirectly to criminate him, or might
expose or tend directly or indirectly to expose him
to a penalty or forfeiture.
[This does not mean that a witness may be asked questions on
irrelevant topics for the mere purpose of contradicting Hm or of
proving contradictory statements. For, unless in the case of the ex-
ceptions mentioned in Section 163, his answers to questions tending to
shake his credit cannot be contradicted ; nor by Section 155, can former
contradictory statements be proved, unless that part of the witness'
evidence, wmch they contradict, was itself liable to be contradicted.
Questions imder this section may, with the permission of the Court,
be asked of a witness when he is being examined-in-chief or re-exa-
mined. See Section 154. Accordingly, a party may, if the Court
permits, discredit his own witness on general grounds, which he can-
not do in England.*
Digitized by VjOOQIC
150 EXAMINATION OF WITNESSES. [CH. X,
An Appellate Court ought to be very cautious in over-ruling the
conclusion come to by an Original Court as to the credibility of
witnesses* The Original Court is in a far better position than the
Appellate Court to form a sound opinion on this point, and its judg-
ment on it should be accepted by the Appellate Court, unless it is
manifestly dear from the probabilities attached to certain circum-
stances in the case that the Original Court was wrong. See Musadee
Mahomed CaeamSherazee v. Meerza Ally Mahomed Khaan^ 6 M, I, -4.,
28. ''This Board never heard of an appeal being instituted on the
ground that witnesses had been discredited : the Court below were
aware of the character of those witnesses, and, besides the knowledge
of their character, had the advantage of seeing their demeanour and
behaviour^ of which we on written evidence have no power of judging.
We feel it our duty, therefore, to decide this case on the general
principle that no appeal will lie from the judgment of a Court below
on the ground that the Court discredited the witnesses produced to
them by either party."— J(mI Saniacana Aloy v. Jayine Ardeual, 1
Enappy 269.]
147. If any such question relates to a matter
When witness relevant to the suit or proceeding, the
to be compelled provisions of scction one hundred and
to answer. thirty-two shall apply thereto.
148. If any such question relates to a matter not
/. ^i. A 'A relevant to the suit or proceeding.
Court to decide . « 'l xr i. ±\. j-/
when question oxccpt m SO tar as it aiiects the credit
^wh^wH^^s ^^ *^® witness by injuring his charac-
compeiied to an- tcr, the Court shall decide whether or
^^^^* not the witness shall be compelled to
answer it, and may, if it thinks fit, warn the witness
that he is not obliged to answer it. In exercising
its discretion, the Court shall have regard to the
following considerations : —
(1.) Such questions are proper if they are of such
a nature that the truth of the imputation conveyed
by them would seriously affect the opinion of the
Court as to the credibility of the witness on the
matter to which he testifies.
(2.) Such questions are improper if the imputa-
tion which they convey relates to matters so remote
in time, or of such a character, that the truth of the
imputation would not affect, or would affect in a slight
Digitized by VjOOQIC
SEC. 147—149.] EXAMINATION OF WITNESSES. 151
degree, the opinion of the Court as to|the credibility
of the witness on the matter to which he testifies.
(3.) Such questions are improper if there is a
great disproportion between the importance of the
imputation made against the witness's character «,nd
the importance of his evidence.
(4.) The Court may, if it sees fit, draw, from the
witness's refusal to answer, the inference that the
answer if given would be unfavourable.
[The Court has the power either of prohibiting questions under this
section, or of drawing or not drawing an inference from a witness'
refusal to answer. The exclusions provided in (2) and (3) and in
Sections 151, 152 indicate, with more distinctness than is to be found
in the English Law, the principles on which the Court should pro-
ceed in protecting witnesses from reckless and unjustifiable interroga-
tion. A witness is not to have his whole past life raJsed up and
dragged into publicity merely because he comes forward in obedience
to tne law to give evidence in Court : so serious a private inconveni-
ence can be justified only by a real necessity ; and it is not so justi-
fied when either the imputation, if true, would not affect the witness'
credibility, or when the injury to the witness' character is very seri-
ous, and the importance of the evidence very smaU. A woman who
in some petty case is asked, " did you not twenty years ago have an
illegitimate child ?" has a right to be protected on the groimd, 1st, that
if she had, it does not affect her truthfulness ; and 2nd, that it is not
worth whUe to endanger her reputation for so trifling a cause.]
149. No such question as is referred to in sec-
Questicm not to tion ouo hundred and forty-eight ought
out "^ r^o^bi; *o be asked, unless the person asking
grounds. it has reasonable grounds for thinking
that the imputation which it conveys is well-founded.
IlliLstrations,
(a,) A barrister is instructed by an attorney or vakil that an im-
portant witness is a dacoit. This is a reasonable ground for asking
the witness whether he is a dacoit.
(6.) A pleader is informed by a person in Court that an important
witness is a dacoit. The informant on being questioned by the
pleader gives satisfactory reasons for his statement. This is a reason-
able ground for asking the witness whether he is a dacoit.
(c.) A witness, of whom nothing whatever is known, is asked at
random whether he is a dacoit. There are here no reasonable grounds
for the question.
Digitized by VjOOQIC
152 EXAMINATION OF WITNESSES. [CH. X,
(c?.) A witness, of whom nothing whatever is known, being ques-
tioned as to his mode of life and means of living, gives unsatisf actoiy
answers. This may be a reasonable ground for asking him if he is
a dacoit
[The Illustrations show that the " reasonable grounds," which jus-
tify such questions, may be much slighter than would justify a man
in making an imputation under other circumstances. A barrister
who is told a discrediting fact by an attorney or vakil, or a pleader
who hears such a fact from a person who appears to know about it, is
justified in so far assuming its truth as to question a witness about
it ; and he may even do so with no other justification than the witness'
unsatisfactory replies.]
150. If the Court is of opinion that any such
Procedure of ^^^stion was asked without reasonable
Court in case of gTouuds, it may, if it was asked by
28k^'''''wi^JSt any barrister, pleader, vakil or attor-
reasonable ney, report the circumstances of the
s^^^^- case to the High Court or other
authority to which such barrister, pleader, vakil or
attorney is subject in the exercise of his profession.
151. The Court may forbid any questions or
TJX J inquiries which it regards as indecent
Indecent and * j i i ., ^i , , .
scandalous ques- or scandalous, altnougii sucn questions
*^^^* or inquiries may have some bearing on
the questions before the Court, unless they relate to
facts in issue> or to matters necessary to be known
in order to determine whether or not the facts in
issue existed.
152. The Court shall forbid any question which
appears to it to be intended to insult
Questions in- or annov, or which, though proper in
tended to insult 'j ir» a j^i /^ j ii i
or annoy. itscli, appears to the Court needlessly
offensive in form.
153. When a witness has been asked and has
Exclusion of auswcrcd any question which is rele-
cvidence to con- yaut to the inquiry only in so far as
tradict answers ... , , ,^, %_. •'j-. i ••
to questions test- it touds to shako his Credit by injur-
ing veracity, [^g j^jg character, no evidence shall be
Digitized by VjOOQIC
SEC. 150—153.] EXAMINATION OF WITNESSES. 153
given to contradict him ; but if he answers falsely,
he may afterwards be charged with giving false
evidence.
Exception 1. — If a witness is asked whether he
has been previously convicted of any crime and
denies it, evidence may be given of his previous con-
viction.(i)
Exception 2. — If a witness is asked any question
tending to impeach his impartiality and answers
it by denying the facts suggested, he may be con-
tradicted. ^2)
lUuitraticns.
(a) A claim against an underwriter is resisted on the ground of
fraud.
The claimant is asked whether, in a former transaction, he had not
made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(6.) A witness is asked whether he was not dismissed from a situa-
tion for di^onesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c.) A afGirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta.
He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which
affects his credit, but as contradicting the alleged fact that B was
seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be
charged with giving false evidence.
(d.) A is asked whether his family has not had a blood feud with
the family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the
question tends to impeach his impartiality.
[(1) As to how a previous conviction is to be proved, see Section^
76 and 77.
(2) As e. g,, that the witness has been endeavouring to suborn
witnesses against a party to the proceeding. This Exception goes
further than the English Law, according to which a witness who
denies acts indicating a hostile spirit, such as having tampered with
the witnesses, having said that the prisoner should be acquitted if it
cost him £20, &c., may not, according to the rulings, be contradicted.
T
Digitized by VjOOQIC
154 EXAMINA*riON OF WITNESSES. [CH. X,
Exceptions 1 and 2. Denial here must be taken as including refusal
to admit A witness who is asked, ' were you convicted last year of
perjury ]' or, " have you not received Kupees 50 from the defendant
about this case 1 and says that he does not know or that he has for-
gotten, practically denies it."]
154. The Court may in its discretion permit the
Question by P^^son who calls a witness to put any
party to his own questions to him which might be put in
witness. cross-examination by the adverse party.
[The person, therefore, who calls a witness, may, with the permis-
sion of the Court, ask him questions to show his general bad character ;
this is not permitted by the English Law.]
155. The credit of a witness may be impeached
in the following ways by the adverse
Impeaching party, or, with the consent of the
credit of witness. ri ^l -i i-i _. i n t_ •
Court, by the party who calls him : —
(1.) By the evidence of persons who testify that
they, from their knowledge of the witness, believe
him to be unworthy of credit ;
(2.) By proof that the witness has been bribed
or has [acceptedj^) the offer of a bribe, or has received
any other corrupt inducement to give his evidence ;
(3.) By proof of former statements inconsistent
with any part of his evidence which is liable to be
contradicted ;^2)
(4.) When a man is prosecuted for rape or an
attempt to ravish, it may be shown that the prose-
cutrix was of generally immoral character Z^)
Explanation. — A witness declaring another wit-
ness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but
he may be asked his reasons in cross-examination,
and the answers which he gives cannot be contra-
dicted,^^) though, if they are false, he may afterwards
be charged with giving false evidence.
Illustrations.
(a.) A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Digitized by VjOOQIC
SEC. 154—156.] EXAMINATION OF WrPNESSES. 155
Evidence is offered to show that, on a previous occasion, he said
that he had not delivered the goods to B.
The evidence is admissible.
(6.) A is indicted for the murder of B.
C says that B, when dying, declared that A had given B the wound
of which he died.
Evidence is offered to show that, on a previous occasion, C said
that the wound was not ^ven by A or in his presence.
The evidence is admissible.
[ (1) The word " accepted" was substituted by Act XVIII of 1872
for the word " offered ;" a very questionable chaiige.
(2) That is. any part of his evidence that relates to a fact in issue
or relevant otherwise than as affecting the witness' credit, or which
falls within the Exceptions to Section 153.
€, g, A witness who has sworn to seeing a murder committed, and
who has denied having been previously convicted or having received
a bribe from either party, may be discredited by proof of his having
made contradictory statement as to either of these points.
So if a witness' opinion is relevant as to sanity or identity, he may
be asked if he has not expressed a contrary opinion \ but where a
witness has merely spoken to a fact, a previous expression of opinion
by him as to the merits of the case is not relevant, and therefore if
he denies having made it, he cannot he contradicted.— 7<ay/., § 1300.
(3) The previous conduct of the prosecutrix might also, in such a
case, be shown to be relevant under Section 8.
By the English Law it is necessary before giving evidence for the
purpose of discrediting a witness to lay a foundation for the evidence
to be given by the interrogation of the witness himself and his denial.
This is not necessary under the present Act.
(4) It is, therefore, very dangerous in cross-examination to ask a
witness his reasons for befieving a witness to be untrustworthy. He
is, by such a question^ enabled to state any unfavorable fact without
fear of contradiction.]
156. When, a witness whom it is intended to
Questions tend- Corroborate gives evidence of any rele-
ing to corrobo- yant fact, he mav be questioned as to
rate evidence of ,-i • j. -l' i. i_
relevant fact, ad- any Other circunistances which he
missibie. obsorved at or near to the time or
place at which such relevant £act occurred, if the
Court is of opinion that such circumstances, if
proved, would corroborate the testimony of the
witness as to the relevant fact which he testifies.
Illustration,
A, an accomplice, gives an account of a robbery in which he took
part. He describes various incidents unconnected with the robbery
which occurred on his way to and from the place where it was com-
mitted.
Digitized by VjOOQIC
15G EXAMINATION OF ' WITNESSES*. [CH. %,
Independent evidence of these facts may be given in order to cor-
roborate his evidence as to the robbery itself.
157. In order to corroborate the testimony of a
witness^ any former statement made
^^«r M^' by sueh witness relating to the same
maybeprovedto fact, at or about the time when the
•oiToborate later f^^^j^ ^qq^ place, or before any authority
testimony a» to , « ^ a i. x • x- x x-l
same fact. legally Competent to investigate the
fact, may be proved.
158. Whenever any statement, relevant under
What matters scction thirty-two or thirty-three, is
may be proved in provcd, all matters may be proved,
^^^^^utei^^t either in order to contradict or to cor-
relevant under roborato it, or in Order to impeach or
Section 32 or 33. ^^^^^j^ ^1^^ Credit of the person by
whom it was made, which might have been proved
if that person had been called as a witness and had
denied upon cross-examination the truth of the
matter suggested.
159. A witness may, while under examination.
Refreshing me- refresh his memory by referring to any
^ory, writing^*) made by himself at the time
of the transaction concerning which he is questioned,
or so soon afterwards that the Court considers it
likely that the transaction was at that time fresh in
his memory.
The witness may also refer to any such writing
made by any other person, and read by the witness
within the time aforesaid, if when he read it he
knew it to be correct. (2)
Whenever a witness may refresh his memory by
,^ ._ reference to any document, he may.
When witness • .i ., r . n ±i r^ x
may use copy of With the permission of the Court,
document to re. refer to a copy of such document :
memory. Provided the Court be satisfied that
there is sufficient reason for the non-production of
the original.
Digitized by VjOOQIC
SEC. 157 — 161.] EXAMINATION OF WITNESSES. 157
An expert may refresh his memory by reference
to professional treatises.
[(1) A document used simply for the purpose of refreshing memory
need not be admissible as evidence ; a document, accordingly, inaa-
missible for want of a stamp or registration, may be used for this
purpose.
(2) So a witness may refer to a log-book not made by himself but
examined by him from time to time while the occurrences were recent,
to depositions made by him in another Court, the correctness of which
he ascertained at the time ; to minutes made by another person
which he has checked ; or to a receipt which he nas seen given.—
Tayl., § 1267.]
160. A witness may also testify to facts men-
Testimony to tioned in any such document as is
facta statedin do- mentioned in section one hundred and
tiVSed in^ec' fifty-nine, although h6 has no specific
tion 159. recollection of the facts themselves, if
he is sure that the facts were correctly recorded in
the document.
Illustration^
A book-keeper may testify to facts recorded by him in books regu-
larly kept in the course of business, if he knows that the books were
correctly kept, although he has forgotten the particular transactions
entered.
[Thus a solicitor who has made a parol lease and entered a memo-
randum of it in his book may refer to it though he has no independ-
ent recollection of the transaction : so a barrister to the notes on his
brief in order to show that a witness has varied in his statement. So
also a witness ma^ look at his own attestation to a deed and say that
from seeing it he is sure that he saw the party execute it, though he
has no recollection of the fact.]
161. Any writing referred to under the provi-
Right of adverse sions of the two last preceding sections
LTu^d^^to'^^ei ^^st be produced and shown to the
fresh memory. advcrso party if he requires it ; such
party may, if he pleases, cross-examine the witness
thereupon.
[It is to be observed that it is only when a document is used for
purposes referred to in Sections 159 and 160, that the adverse party has
a rijjht to see and cross-examine upon it ; and, therefore, if a cross-ex-
amining council puts a paper into a witness' hands and asks him as
to its general character or handwriting, the opposite party will not,
on that account merely, be entitled to see it.
The English rule as to a document used to refresh a witness' memory,
is that the opposite party may inspect the document and cross-ex-
Digitized by VjOOQIC
158 EXAMINATION OF WITNESSES. [CH. X,
amine the witness on such entries as have been ahreadjr referred to
without putting in the document as part of his own evidence : but
that if he goes further and asks questions as to other parts he makes
it his own evidence. — TayL, § 1270. No such distinction appears to
be maintained by the present law. If the document is used for the
purposes mentioned, the witness may be cross-examined upon it.]
162. A witness summoned to produce a docu-
Production of meut shall, if it is in his possession or
documents. powoT, bring it to Court, notwithstand-
ing any objection which there may be to its produc-
tion or to its admissibiUty. The validity of any
such objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the docu-
ment, unless it refers to matters of State, or take
other evidence t6 enable it to determine on its admis-
sibility.
If for such a purpose it is necessary to cause any
Translation of documcut to be translated, the Court
documents. may, if it thinks fit, direct the transla-
tor to keep the contents secret, unless the document
is to be given in evidence : and if the interpreter
disobeys such direction, he shall be held to have
committed an offence under section one hundred and
sixty-six of the Indian Penal Code.
163. When a party calls for a document which
Giving, as eyi- ^® ^as given the other party notice to
dence, of docu- produco, and such document is produc-
^^ priced on ©d and inspected by the party calling
notice. for its production, he is bound to give
it as evidence if the party producing it requires him
to do so.
164. When a party refuses to produce a docu-
ment which he has had notice to pro-
dencl"*^of^docu. d^^e, he cannot afterwards use the
nfttit production documcut as evidence without the con-
fusld^on nXr s^nt of the oihor party or the order of
the Court.
Illustration.
A sues B on an agreement and gives B notice to produce it. At
Digitized by VjOOQIC
SEC. 162—166.] EXAMINATION OF WITNESSES. 159
the trial, A calls for the document and B refuses to produce it. A
fiv^s secondary evidence of its contents. B seeks to produce the
ocument itself to contradict the secondary evidence given by A, or in
order to show that the agreement is not stamped. He cannot do so.
165. The Judge may, in order to discover or to
^ ^ , obtain proper proof of relevant facts.
Judge's p6wer i a»i i •
to put questions asK any question he pleases, m any
OT order produc- form, at any time, of any witness, or
of the parties, about any fact relevant
or irrelevant ; and may order the production of any
document or thing : and neither the parties nor their
agents shall be entitled to make any objection to
any such question or order, nor, without the leave
of the Court, to cross-examine any witness upon any
answer given in reply to any such question :
Provided that the judgment must be based upon
facts declared by this Act to be relevant, and duly
proved.
Provided also that this section shall not authorise
any Judge to compel any witness to answer any
question, or to produce any document which such
witness would be entitled to refuse ^o answer or pro-
duce -under sections one hundred and twenty-one
to one hundred and thirty-one both inclusive, if the
question were asked or the document were called for
by the adverse piarty ; nor shall the Judge ask any
question which it would be improper for any other
person to ask under sections one hundred and forty-
eight or one hundred and forty-nine ; nor shall he
dispense with primary evidence of any document,
except in the cases hereinbefore excepted.
[And, therefore, a Judge ought, it would seem, not to ask any ques-
tion, and eertainly not to record an answer to any question which
would be excluded by the provisions of Chapter vij
166. In cases tried by jury or with assessors, the
Power of jury J^^J ^^ asscssors may putany ques-
or assessors to tious to the witucsses, through or by
put questions, j^^^^ ^f ^^ j^j^^^ ^j^.^j^ ^^^ j^^^^
himself might put and which he considers proper.
Digitized by VjOOQIC
160 IMPROPER ADMISSION AND REJECTION OF [CH. XI,
EVIDENCE. SEC. 167.]
CHAPTER XI.
Op improper admission and rejection of evidence.
167. The improper admission or rejection of evi-
, . , dence shall not be ground of itself for
No new trial « • i i /• j • •
for rejection or a new trial or reversal of any decision
improper recep- Jn anv casc, if it shall appear to the
tion of evidence. ^ Tip i»i ii-j«
Court, before which such objection is
raised, that, independently of the evidence objected
to and admitted, there was suflScient evidence to
justify the decision, or that, if the rejected evidence
had been received, it ought not to have varied the
decision*
[This principle is acted upon by the Judicial Committee of the
Pnvy Council. In Lola Bandhidhar v. Government of Bengal, 9
B. L, B.f 364, the Courts below having admitted evidence not
properly admissible, the Judicial Committee examined the whole
evidence, and being satisfied that, independent of the evidence
imijroperly admitted, there was sufficient evidence to justify the
decision of the Courts below, rejected the appeal.]
Digitized by VjOOQIC
161
Q
W
o
CQ
o
X
o
I
I
^
o
s
Digitized by VjOOQIC
Digitized by VjOOQIC
APPENDIX.
LIABILITY TO DAMAGES FOR REFUSING TO' GIVE
EVIDENCE.
Act XIX of 1853, Section 26.
XXVI. Any person, whether a party to the suit or not, to whom a
summons to attend, and give evidence or produce a document, shall
be personally delivered, and who shaU, without lawful excuse, neglect
or refuse to obey such summons, or who shall be proved to nave
absconded, or kept out of the way to avoid being served witii such
summons, and any person who, being in Court and upon being required
by the Court to give evidence, or produce a document in his possession,
sh^ without lawful excuse, refuse to give evidence, or sign his depo-
sition, or to produce a document in his possession, shall, in addition
to any proceedings under this Act, be uable to the party at whose
request the summons shall have been issued, or at whose instance he
shall be required to give evidence, or produce the document, for all
damages which he may sustain in consequence of such neglect, or
refus5, or of such absconding, or keeping out of the way as aforesaid,
to be recovered in a civil action.
19 k 20 Vict., Cap. 113.
An Act toproidde for taking evidence in Her Majesty's dominion's in
relation to Civil and Commercial matter's pending before foreign
tribunals,
(29<A July 1856.)
Whekeas it is expedient that facilities be afforded for taking evi-
dence in Her Majesty's dominions in relation to Civil and Commer-
cial matters pending before foreign tribunals : Be it enacted
I. Where, upon an application for this purpose, it is made to ap-
pear to any Court or Judge having authority under
Order for exa- this Act, that any Court or tribunal of competent
mination of wit- Jurisdiction in a foreign country, before which any
nesses in this qj^ ^j. (Commercial matter is pending, is desirous
t ^ n'to anv CivU ^^ obtaining the testimony in relation to such matter
or* Commercial ^^ ^^^ witness or witnesses within the jurisdiction
matter pending ^^ such first mentioned Court, or of the Court to
before a iEoreign which such Judge belongs, or of such Judge, it shall
tribunal he lawful for such Court or Judge to order the
examination upon oath, upon interrogatories or
otherwise, before any person or persons named in such order, of such
witness or witnesses accordingly ; and it shall be lawful for the said
Digitized by VjOOQIC
164 APPENDIX.
Court or Judge, by the same order, or for such Court or Judge, or any-
other Judge having authority under this Act, by any subsequent order,
to command the attendance of any person to be named in such order,
for tlie purpose of being examined, or the production of any writings
or other documents to be mentioned in such order, and to give all
such directions as to the time, place, and manner of such examination,
and sdl other matters connected therewith, as may appear reasonable
and just ; and any such order may be enforced in like manner as an
order made by such Court or Judge in a cause depending in such
Court or before such Judge.
II. A certificate under the hand of the ambassador, minister, or
other diplomatic A^ent of anj foreign power received
Certificate of ^ g^^jj )^y jjgy J^iajesty, or in case there be no such
ffi*^ t ' e^' diplomatic Agent, therf of the Consul General or
demS^^ suDDort ^^^^^^ ^^ ^^Y such foreign power at London,
of application received and adnHtted as such by Her Majesty^ that
^^ ' any matter in relation to which an application is
made under this Act is a Civil or Commercial matter pending before
a Court or tribunal in the country of which he is the^diplomatic Agent
or Consul having jurisdiction in the matter so pending, and that such
Court or tribunal is desirous of obtaining the testimony of the witness
or witnesses to whom the application relates, shall be evidence of the
matters so certified ; but where no such certificate is produced other
evidence to that effect shall be admissible.
III. It shall be lawful for every person authorized to take the
. examination of witnesses by any order made in
Examination of pursuance of this Act to take all such examinations
witnesses to be ^^^^ ^j^^ ^^^Yl of the witnesses, or affirmation in
tak6n upon oatn. ^^^ ^^^^^ affirmation is aUowed by law instead of
oath, to be administered by the person so authorized : and if upon
. . such oath or affirmation any person making the
Persons ^ving ^^^ wilfully and corruptly give any false evidence,
•iL *®^5?,^f every person so offending shall be deemed and
guilty of perjury. ^^^^ ^ ^ ^^^ ^^ ^^^^^
IV. Provided always, that every person whose attendance shall be
Pavment of ex- ®^ required shall be entitled to the like conduct
pens^ money, and payment for expenses and loss of time,
^ ' as upon attendance at a trial.
V. Provided also, that evety person examined under any order
Persons to have ^^^ under this Act shall have the like right to
right of refusal to refuse to answer questions tending to criminate
answer questions himself, and other questions, which a witness in any
and to produce cause pending in the Court by which or by a Judge
documents. whereof or before the Judge Dy whom the order for
examination was made would be entitled to ; and that no person
shall be compelled to produce under any such order as aforesaid any
writing or other document that he would not be compelled to produce
at a tnal of such a cause.
VI. Her Majesty's Superior Courts of Common Law at Westmins-
ter and in Dublin respectively, the Court of Session
Certain Courts in Scotland, and any Supreme Court in any of Her
and Judges to Majesty's Colonies or possession abroad, and any
Digitized by VjOOQIC
APPENDIX. 165
liave authority Judge of any such Court, and every Judge in any
under this Act. such Colony or possession who bj; any order of Her
Maiesty in Council may be appointed for this pur-
pose, shall respectively be Courts and Judges having authority under
Lord Chancel *^ "^^^ ' ^^^vided, that the Lord Chancellor, with
lor &c to frame *^® assistance of two of the Judges of the Courts of
rules &c Common Law at Westminster, shall frame such
* * rules and orders as shall be necessary or proper
for giving effect to the provisions of this Act, and regulating the
procedure under the same.
22 Vict., Cap. 20.
An Acr to provide for taking evidence in Suits and Proceedings pending
before tribunals in Her Majesties dominions in places out of the
jurisdiction of smh tribunal.
(19<A April 1869.)
Wheeeas it is expedient that facilities be afforded for taking evidence
in or in relation to Actions, Suits, and Proceedings
Preamble pending before tribunals in Her Majesty's domi-
nions in places in such dominions out of the juris-
. diction of such tribunals : Be it enacted, &c.
I. Where, upon an application for this purpose, it is made to
appear to any Court or Judge having authority
Order for exa- ^^^^^ *^^^ ^^^^ *^^* *^y Court or tribunal of com-
mination of wit- Patent jurisdiction in Her Majesty's dominions has
nesses out of the ^^7 authorized, by commission, order, or other
jurisdiction in re- process, the obtaining the testimony in or in rela-
lation to any suit tion to any Action, Suit, or Proceeding pending in
pending before or before such Court or tribunal of any witness or
any tribunal in witnesses out of the jurisdiction of such Court or
Her Majesty's tribunal, and within the jurisdiction of such first
possessions. mentioned Court, or of the Court to which such
Judge belongs, or of such Judge, it shall be lawful
for such Court or Judge to order the examination before the person
or persons appointed, and in manner and form directed by such Com-
mission, order, or otner process as aforesaid, of such witness or wit-
nesses accordingly ; and it shall be lawful for the said Court or Judge,
by the same order, or for such Court or Judge, or any other Judge
having authority under this Act, by any subsequent order, to com-
mand the attendance of any person to be named in such order, for the
purpose of being examined, or the production of any writings or other
documents to be mentioned in such order, and to give all such direc-
tions as to the time, place, and manner of such examination, and all
other matters connected therewith, as may appear reasonable and just;
and any such order may be enforced, and any disobedience thereof
punished, in like manner as in case of an order made by such Court
or Judge in a cause depending in such Court or before such Judge.
IL Every person examined as a witness under any such com-
x> ,. mission, order, or other process as aforesaid, who
sonr^vmrfaSe ®^*^ ^P®^ ^^^^ examination wilfuUy and corruptly
evidence ^^^^ ^^^ ^^^ evidence, shall be deemed and taKen
to be guilty of perjury.
Digitized by VjOOQIC
106 APPENDIX.
III. Provided always, that every person whose attendance shall be
. so ordered shall be entitled to the like conduct
i'aymentotex- ^Qney, and payment for expenses and loss of time,
penses. ^ ^^^^^ attendance at a trial
IV. Provided also, that every person examined under any such
commission, order or other process as foresaid,
Power to per- g}^ have the like right to refuse to answer ques-
son to refuse to Hqj^ tending to crimmate himself, and other ques-
S?*»riS^r him^ *^^^® which a witness in any cause pending in the
to cruttma^e - q^^j^ |jy ^jiich, or by a Judge whereof, or before
duce documents **^® Judge by whom the order for examination was
made, would be entitled to, and that no person shall
be compelled to produce under any such order as aforesaid any
writing or other document that he would not be compellable to pro-
duce at a trial of such a cause.
V. Her Majesty's Superior Courts of Common Law at Westmins-
ter and in Dublin respectively, the Court of Ses-
Certam Courts g^^^ ^ Scotland, and any Supreme Court in any of
and •'^^1^ .J^ Her Majesty's Colonies or possessions abroad, and
any such Colony or possession who, by any order of
Her Majesty in Council, may be appomted for this purpose, shall res-
pectively be Courts and Judges having authority under this Act.
VI. It shall be lawful for the Lord Chancellor of Great Britain,
with the assistance of two of the Judges of the Courts of Common
Law at Westminster, so far as relates to England, and for the Lord
Chancellor of Ireland, with the assistance of two of the Judges of the
Courts of Common Law at Dublin, so far as relates to Ireland, and for
two of the Judges of the Court of Session, so far as relates to Scotland,
and for the Chief or only Judge of the Supreme Court in any of Her
Majesty's Colonies or possessions abroad, so far as relates to such
Colony or possession, to frame such rules and orders as shall be neces-
sary or proper for giving eflFect to the provisions of this Act and regu-
lating the procedure under the same.
22 & 23 Vict., Cap. 63.
An Act to afford facilities for the more certain ascertainment of the
law administered in one part of Her Mqjesti/s dominions when
pleaded in the Courts of another part thereof
(Uth August 1859.)
Whereas great improvement in the administration of the law would
p , , ensue if facilities were afforded for more certainly
Preamble. ascertaining the law administered in one part of
Her Majesty's dominions when pleaded in the Courts of another
part thereof : Be it therefore enacted, &c.
I. If, in any action depending in any Court within Her Majesty's
dominions, it shall be the opinion of such Court,
Courts in one that it is necessary or expedient, for the proper
part of Her Ma- disposal of such action, to ascertain the law appli-
jesty'sdommions cable to the facts of the case as administered in
may remit a case ^^^^^ ^^ ^f jjgj^ Majesty's dominions on any
for the opmion m .^^^ ^^ ^^^ ^^^ j^^ ^^ g^^j^ ^^^^^ ^ of Her
Digitized by VjOOQIC
APPENDIX. 167
law of a Court in M^yesty's dominions is diflferent from that in which
any oth«r part the Court is situate, it shall be competent to the
thereof. Court in which such action may depend to direct
a case to be prepared setting forth the facts as these may be ascer-
tained by verdict of a Jury or other mode competent, or as may be agreed
upon by the parties, or settled by such person or persons as may have
been appointed by the Court for that purpose in the event of the
parties not agreeing ; and upon such case being approved of by such
Court or a Judge thereof, they shall settle the questions of law arising
out of the same on which they desire to have the opinion of another
Court, and shall pronounce an order remitting the same, together with
the case, to the Court in such other part of Her M^yestjr's dominions,
being one of the Superior Courts thereof, whose opinion is desired
upon the law administered by them as applicable to the facts set forth
in such case, and desiring them to pronounce their opinion on the
questions submitted to them in the terms of the Act ; and it shall be
competent to any of the parties to the action to present a petition to
the Court whose opinion is to be obtained, praying such last men-
tioned Court to hear parties or their counsel, and to pronounce their
opinion thereon in the terms of this Act^ or to pronounce their opinion
without hearing parties or counsel : and the Court to whicn such
petition shall be presented, shall, if they think fit, appoint an early
day for hearing parties or their counsel on such case, and shall there-
after pronounce their opinion upon the questions of law as adminis-
tered oy them which are submitted to them by the Court ; and in
order to their pronouncing such opinion they shall be entitled to take
such further procedure thereupon as to them shall seem proper.
n. Upon such opinion being pronounced, a copy thereof, certified
Opinion to be by an oflGicer of such Court, shaU be given to each
authenticated & of the parties to the action by whom the same shall
certified copy be required, and shall be deemed and held to con-
given, tain a correct record of such opinion.
III. It shall be competent to any of the parties to the action, after
having obtained such certified copv of such opinion, to lodge the same
with an officer of the Court in wnich the action may be depending,
who may have the official charge thereof, together with a notice of
motion, setting forth that the party will, on a certain day named in
such notice, move the Court to apply the opinion contained in such
certified copy thereof to the facts set forth in the case hereinbefore
specified, and the said Court shall thereupon apply such opinion to
such facts, in the same manner as if the same had been pronounced
by such Court itself upon a case reserved for opinion of the Court, or
upon special verdict of a Jury ; or the said last mentioned Court
shall, 2 it think fit, when the said opinion has been obtained
before trial, order such opinion to be submitted to
Opinion to be the Jury with the other facts of the case as evidence,
applied by the ^^ conclusive evidence as the Court may think
Court making the g^^ ^f ^he foreign law therein stated, and the said
remit, opinion shall be so submitted to the Jury.
IV. In the event of an appeal to Her Majesty in Council or to the
House of Lords in any such action, it shall be com-
Her Majesty in petent to bring under review of Her Majesty in
Council or House Council or of the House of Lords the opinion
Digitized by VjOOQIC
168 APPENDIX.
of Lords on ap- pronounced as aforesaid by any Court whose
peal may adopt or judgments are reviewable by Her Majesty in Coun-
reject opinion. cil or by the House of Lords, and Her Migesty in
Council or that House may respectively adopt or
reject such opinion of any Court whose Judgments are respectively
reviewable by them as the same shall appear to them to be wellf ounded
or not in law.
V. In the construction of this Act, the word " action" shall include
every judicial proceeding instituted in any Court,
Interpretation Civil, Criminal, or Ecclesiastical ; and the words
of terms. " Superior Courts'' shall include, in England the
Superior Courts of Law at Westminster, the Lord
Chancellor, the Lords Justices, the Master of the EoUs, or any Vice
Chancellor, the Judge of the Court of Admiralty, the Judge Ordi-
nary of the Court for Divorce and Matrimonial Causes, and
the Judge of the Court of Probate ; in Scotland, the High Court
of Justiciary, and the Court of Session, acting by either of its divisions ;
in Ireland, tne Superior Courts of Law at Dublin, the Master of the
RoUs and the Judge of the Admiralty Court and in any other part of
Her Majesty's dominions, the Superior Courts of Law or Equity
therein.
24 Vict., Cap. 11.
An Act to afford facilities for the better a^scertainrrientof the law of
foreign countries when pleaded in Courts tvithin Mer Majesty's
dominions,
(VJth May 1861.;
Whebeas an Act was passed in the twenty-second and twenty-third
Pr w 92 A- years of Her Majes^s reign, intituled an Act to
23 V^c^c 63 afford facilities for the more certain ascertainment
1 ., . otf . of the law administered in one part of Her Majes-
ty's dominions when pleaded in the Courts of another part thereof.
And whereas it is expedient to afford the Uke facilities for the better
ascertainment, in similar circumstances, of the law of any foreign
countrv or State with the Government of which Her Majest^ may oe
pleased to enter into a convention for the purpose of mutually ascer-
taining the law of such foreign country or State when pleaded in
actions depending in any Courts within Her Majesty's dominions
and the law as administered in any part of Her Majesty's dominions
when pleaded in actions depending in the Courts of such foreign
country or State : Be it therefore enacted, &c.
I. If, in any action depending in any of the Superior Courts
within Her Majesty's dominions, it shall be the opi-
Su^eriOT Courts njon of such Court, that it is necessary or expedient,
wittun Her Ma- f^y ^j^^ disposal of such action, to ascertain the law
jesty s dominions applicable to the facts of the case as administered in
whh'a^riesto^a ^^^ foreign State or country with the Government
Court of any fo- ^^ which Her Majesty shall have entered into such
reign State with- Convention as aforesaid, it shall be competent to the
in which Her Ma- Court in which such action may depend to direct a
jesty may have case to be prepared setting forth the facts as these
made a conven- may be ascertained by verdict of a Jury or other
tion for that pur- mode competent, or as may be agreed upon by the
Digitized by VjOOQIC
APPENDIX. 169
pose, for ascer- parties, or settled by such person or persons as may
tainment of law have been appointed by the Court for that purpose
of such State. in the event of the parties not agreeing ; and upon
such case being approved of by such Court or a Judge thereof, such
Court or Judge shall settle the questions of law arising out of the
same on which they desire to have the opinion of another Court, and
shall pronounce an order remitting the same, together with the case,
to such Superior Court in such foreign State or country as shall be
agreed upon in said convention, whose opinion is desired upon the
law admmistered by such foreign Court as applicable to the facts set
forth in such case, and requesting them to pronounce their opinion
on the questions submitted to them ; and upon such opinion being
pronounced, a copy thereof certified by an officer of such Court, shall
be deemed and held to contain a correct record of such opinion.
II. It shall be competent to any of the parties to the action, after
having obtained such certified copy of sucn opi-
Court in which ^ion, to lodge the same with the Officer of the
action depends to Court within Her Majesty's dominions in which
apply such opi- ^^le action may be dependmg, who may have the
^^ * motion, setting forth that the party will, on a cer-
tain day named in such notice, move the Court to
apply the opinion contained in such certified copy thereof to the
facts set forth in the case hereinbefore specified, and the said Court
shall thereupon, if it shall see fit, apply such opinion to such facts,
in the same manner as if the same had been pronounced by such
Court itself upon a case reserved for opinion of the Court, or upon
special verdict of a Juiy ; or the said last-mentioned Court shall, if it
thhik fit, when the said opinion has been obtained before trial, order
such opinion to be submitted to the Jury with the other facts of the
case as conclusive evidence of the foreign law therein stated, and the
said opinion shall be so, submitted to the Jury : Provided always, that
if after having obtained such certified copy the Court shall not be satis-
fied that the facts had been properly understood by the foreign Court
to which the case was remitted, or shall on any ground whatsoever
be doubtful whether the opinion so certified does correctly represent
the foreign law as regards the facts to which it is to be applied, it
shall be lawful for such Court to remit the said case, either with or
without alterations or amendments, to the same or to any other such
Superior Court in such foreign State as aforesaid and so from time to
time as may be necessary or expedient.
III. If, in any action depending in any Court of a foreign countnr
or State with whose Government Her Majesty shall
' Courts in Her have entered into a convention as above set forth, ^
Majesty's domi- such Court shall deem it expedient to ascertain the
nions may pro- law applicable to the facts of the case as adminis-
nounce opinion tered in any part of Her Majesty's dominions, and
on case remitted if the foreign Court in which such action may
by a foreign depend shafl remit to the Court in Her Majesty ^s
Court. dominions whose opinion is desired a case setting
forth the facts and the questions of law arising out of the same on which
they desire to have the opinion of a Court within Her Majesty's
dominions, it shall be competent to any .of the parties to the action
V
Digitized by VjOOQIC
170 APPENDIX.
to present a petition to such last-mentioned Court, whose opinion is
to oe obtained, praying such Court to hear parties or their Counsel,
and to pronounce their opinion thereon in terms of this Act or to
pronounce their opinion without hearing parties or Counsel ; and the
Court to which such petition shall be presented shall consider the
same, and if they think fit, shall appoint an early day for hearing
parties or their counsel on such case, and shall pronounce the opinion
upon the questions of law as administered b^r them which are sub-
mitted to them by the foreign Court ; and in order to their pro-
nouncing such opinion they shall be entitled to take such further
procedure thereupon as to them shall seem proper and upon such
opinion being pronounced a copy thereof, certified by an officer of
such Court shall be given to each of the parties to the action by whom
the same snail be required.
IV. In the construction of this Act, the word " action" shall in-
T . ... elude every judicial proceeding instituted in any
^terpretation q^^^, Qvil, Criminal, or Ecclesiastical; and the
oi terms. words " Superior Courts" shall include, in England,
the Superior Courts of Law at Westminster, the Lord Chancellor,
the Lords Justices, the Master of the Eolls, or any Vice Chancellor,
the Judge of the Court of Admiralty, the Judge Ordin^ of the Court
for Divorce and Matrimonial Causes, and the Judge of the Court of
Probate ; in Scotland, the Hi^h Court of Justiciary, and the Court of
Session, acting by either of its divisions ; in Ireland, the Superior
Courts of Law at Dublin, the Master of the Rolls and the Judge of
the Admiralty Court and in any other part of Her Majesty's dominions,
the Superior Courts of Law or Equity therein ; and in a foreign
country or State, any Su{>erior Court or Courts which shall be set
forth in any such convention between Her Majesty and the Govern-
ment of such foreign country or State.
31 & 32 Vict., Cap. 37.
An Act to amend the law relating to documentary evidence in certain
cases.
(2bth June 1868.^
, . Whereas it is expedient to amend the law rela-
rrcambie. ^- ^^g ^ evidence : Be it enacted, &c.
cu^-4. *:*!- I- This Act may be cited for all purposes as
Short tiUe. ,, ^^ Documentary Evidence Act, 1868."
II. PrimA facie evidence of any proclamation, order, or regulation
- - , . issued before or after the passing of this Act by
• rta^ S"'''" H«^ Majesty, or by the Privy Council, also of any
ment^^"* ^^' Proclamation, order, or regulation issued before or
after the passing of this Act by or under the
authority of any such Department of the Government or officer as is
mentioned in the first column of the schedule hereto, may be given
in all Courts of Justice, and in all legal proceedings whatsoever, in
all or any of the modes hereinafter mentioned ; that is to say :
(1.) By the production of a copy of the Gazette purporting to
contain such proclamation, order, or regulation.
Digitized by VjOOQIC
APPENDIX. 171
(2.) By the production of a copy of such proclamation, order, or
regulation purporting to be printed by the Government
prmter, or, where the question arises in a Court in any
iritish colony or possession, of a copy purporting to be
printed under the authority of the legislature of such
iritish colony or possession.
(3.) By the production, in the case of any proclamation, order, or
regulation issued by Her Majesty or by the Privy Council,
of a copy or extract purporting to be certified to be true
by the clerk of the Privy Council, or by any one of the
Lords or others of the ftivy Council, and, in the case of
any proclamation, order, or regulation issued by or under
the authority of any oi the said departments or officers,
by the production of a copy or extract purporting to be
certified to be true by the person or persons specified in
the second column of the said schedule in connexion with
such department or officer.
Any copy or extract made in pursuance of this Act may be in print
or in writmg, or partly in print and partly in writing.
No proof shall be required of the handwriting or official position
of any person certifying, in pursuance of this Act, to the truth of any
copy of or extract from any proclamation, order, or regulation.
III. Subject to any law that may be from time
Act to be in to time made by the legislature of any British
force in Colonies, colony or possession, this Act shall be in force in
every such colony and possession.
Punishment of IV. If any person commits any of the offences
forgery. following, that is to say—
(1.) Prints any copy of any proclamation, order, or regulation,
which falsely purports to have been printed by the
Government printer, or to be printed under the authority
of the legislature of any British colony or possession, or
tenders in evidence any copy of any proclamation, order, or
regulation which falsely purports to have been printed as
aforesaid, knowing that the same was not so printed ; or
(2.) Forges or tenders in evidence, knowing the same to have
been forged, any certificate by this Act authorized to be
annexed to a copy of or extract from any proclamation,
order, or regulation ;
he shall be guilty of felony, and shall on conviction be liable to be
sentenced to penal servitude for such term as is prescribed by the
Penal Servitude Act, 1864, as the least term to which an offender
can be sentenced to penal servitude, or to be imprisoned for any
term not exceeding two years, with or without hard labour.
v. The following words shall in this Act have the meaning
T^ ^ . . - hereinafter assigned to them, unless there is some-
te^a *^^^« ^ *^® context repugnant to such con-
structions ; (that is to say)—
Digitized by VjOOQIC
172
APPENDIX.
" British Colony and Possession" shall for the purposes of this
" British Colonv include the Channel Islands, ihe isle of Man,
and Possession " *^^ ^^^^ territories as may for the time iJeing be
vested in Her Majesty by virtue of any Act of
Parliament for the government of India and all other Her Majesty^s
dominions.
"" Legislature'^ shall signify any authority other than the Imperial
** Leirialature " Parliament or Her Majesty in Council competent
^ to make laws for any colony or possession.
" Privy Council" shall include Her Majesty in Council and the
Lords and others of Her Msyesty's Privy Council,
** Privy Coun- or any of them, and any Committee of the Privy
cil." Council that is not specially named in the schedule
hereto.
" Government Printer" shall mean and include the printer to Her
,,p . Majesty and any printer purporting to be the
P inter ^'^"^^ printer authorized to print the Statutes, Ordinances,
^ ' Acts of State, or other public Acts of the legislature
of any British colony or possession, or otherwise to be the Govern-
ment printer of such colony or possession.
" Gazette" shall include the London Gazette, the
** Gazette." Edinburgh Gazette, and the Dublin Gazette, ot 2iXiY
of such Gazettes.
The provisions of this Act shall be deemed to be in addition
to, and not in derogation of, any powers of proving
documents given by any existing Statute or existing
at Common Law.
VI.
Act to be cumu
lative.
SCHEDULE.
Column 1.
COLUMK 2.
Name of Department or Officer.
Names of Certifying Officers.
The Commissioners of the Treasury.
The Commissioners for executing the
^ office of Lord High Admiral.
Secretaries of State
Committee of Privy Council for
Trade.
The Poor-Law Board
Any Commissioner, Secretary, or
Assistant Secretary of the Trea-
sury.
Any of the Commissioners for exe-
cuting the office of Lord High
Admiral or either of the Secretaries
to the said Commissioners.
Any Secretary or Under-Secretary
of State
Any member of the Committee of
Privy Council for Trade or any
Secretary or Assistant Secretary of
the said Committee.
Any Commissioner of the Poor-Law
Board or any Secretary or Assis-
tant Secretary of the said Board.
Digitized by VjOOQIC
INDEX.
ABBREVIATIONS in written instrument,
explicable by parol evidence
ABSCONDING
ABSENT PERSON, statement of, when rele-
vant. (See Statement)
ABSOLUTE certainty how far attainable or
necessary... ... '
ACCEPTANCE of Inland Bills of Exchange
must be in writing...
ACCEPTORS or Endorsersof Bills of Exchange,
Estoppel afifecting ...
ACCIDENT, facts, part of series of similar
transactions, relevant to show whether
act intentional or
ACCOMPLICE, Evidence of
Evidence of ...
giving evidence, Judge's duty with regard
to
ACCOUNT BOOKS, Entries in
ACCOUNTS, when general result of may be
spoken to, and by whom ...
ACCUSED, Confessions by
person's confessions, how far to be received,
person refusing to answer, Presumption as
to
person or persons giving evidence, Rules
as to
ACQUIESCENCE, when not to be inferred
from silence
Sec. Page.
98
8
91
117
15
.. Introduction
114
133
32
65
Introduction
24
114
118
111
13
6
93
134
26
48
120
144
47
81
18
37
132
137
14
Digitized by VjOOQIC
10
19
13
21
14
?5
37
64
37
54
57
72
78
85
41
59
6
10
32
47
21
32
17
28
174 INDEX.
Sec. Page.
ACQUITTAL, Effect of former Introduction 21
ACTIONABLE WRONG, conspiracy to com-
mit ... ... ... ... 10 . 17
ACTS of one person when necessary to explain
the conduct of another
of ownership ...
of one person may indicate a state of mind
in another
of Parliament
of Indian Legislature, Supreme or Local...
Judicial notice to be taken of ...
of the Indian Government how proved . . .
ADDING to contents of document by parol.
(See Document,)
ADMIRALTY, Decrees, &c., of Courts of ...
ADMISSIBILITY of statements of by^standers
of entries whether the maker is dead or not
ADMISSION
Definition of
of existence or contents of document,
Effect of ... ... ... ...Introduction 17
when proveable by the person who
made it ... ... ... ...Introduction 17
ADMISSIONS, Against whom relevant ... Introduction 16
by one who has proprietary or pecuniary
interest in subject-matter ... ... 18 29
by persons whose position must be proved
as against party to suit. ... ... 19 32
by persons expressly referred to by party
to suit
before an arbitrator
as to contents of Tiocuments
ADOPTION need not be in writing
acquiesced in for many years, Presump-
tion with regard to
ADULTERY, Admission of
ADVERSE PARTY, right of, to see and
cross-examine upon documents used
to refresh memory ... ... ... 161 157
ADVOCATE liable to be reported for asking
improper questions ... ...Introduction 51
20
32
23
37
22
35
91
94
114
127
32
42
Digitized by VjOOQIC
INDEX.
175
Sec. Page.
ADVOCATE liable to he reported for asking
improper questions
AFFAIRS OF STATE, Evidence as to
AFFIDAVIT, Statement contained in
AFFIRMATIONS
AGENCY, Proof of continuing.
AGENT, Admission by
for an infant
for purdah ladies, Presumption as to
ALIBI, Facts in disproof of an
ALTERATION in a Deed raises a presumption
of fraud
ALTERATIONS in Wills ...
in pencil in Wills, Presumptions as to ...
AMBIGUOUS DOCUMENT
ANCESTRAL ESTATE, Presumption as to ...
ANCIENT POSSESSION
ANNEXING CUSTOMARY INCIDENTS...
ANNOYING QUESTIONS
ANSWERS to questions on character cannot
be contradicted ...
APPARENT OWNER, Estoppel of
APPEAL, Rejection of evidence, not always
ground of ... ... ... 167
APPELLATE COURTS duty with regard to
conclusions come to by Original Court. 146
ARBITRATOR, Admissions before... ... 23
ART, Opinion of Experts relevant on questions
of. (See Expert)
ARTICLES OF WAR, Judicial notice of . . . 57
ASSAULT, various circumstances to be con-
sidered in actions for ... ... 12
ASSESSORS, what questions they may put
with leave of Judge ... ... 166
ATTESTATION Introduction
when necessary ... ... ... Introduction
Proof of ... ... ... ... 65
ATTESTED DOCUMENT 68
ATTESTING WITNESS 68
150
152
Introduction
47
33
52
Introduction
8
109
116
18
28
18
30
114
124
11
19
62
77
79
87
114
128
83
107
114
123
13
21
92
98
148
150
Introduction
51
153
153
115
134
160
150
37
72
21
159
32
7
81
83
83
Digitized by VjOOQIC
Sec.
Page.
85
90
L26
139
24
37
91
94
176 INDEX.
ATTOKNEY, Power of
compelkble to give evidence
AUTHORITY, Threat, to obtain confession,
made by person in
of a widow to adopt need not be in writing.
BAD CHARACTER may be proved, only to
rebut evidence of good character
when character is a fact in issue, Evidence
admissible as to
Evidence of
BAILEE, Licensee or drawer of Bills of Ex-
change, Estoppel of
sued by Bailor
BAILEES, General duties and rights of
BANKERS' BOOKS
BARRISTER, &c., when bound to answer
questions as to professional communi-
cations
BARRISTER
BELIEF, how produced in Judge's mind ... In
BENAMEE PURCHASE, Presumptions with
regard to ... ... ... ... 114 122
BENEFICIAL OWNERS treating with the
Benamidar, Law of estoppel with
regard to...
BENTHAM*S VIEW as to the Corpus Delicti Introduction
as to confessions
BILL having got back into the acceptor's hands,
Presumption as to. . .
of lading, Presumption as to
of exchange. Estoppel of acceptor of
BILLS OF EXCHANGE, Presumptions as to
BIRTH, baptism, &c., proved by parol testi-
mony
BODILY FEELING, facts showing, are rele-
vant, when
BONA FIDES of the Manner of an Infant's
ancestral Estate, Presumption as to ...
52
70
54
70
54
69
117
135
117
136
117
135
34
53
23
37
126
139
iction
1
115
132
action
12
24
37
114
132
114
129
117
135
114
131
91
95
14
22
HI
118
Digitized by VjOOQIC
INDEX. 177
Sec. Page.
. BOND, conditional for payment absolutely, ex-
cludes evidence of another agreement..
BOOKS of account. Admissions in ...
of a Company being wound up ...
of account
showing expert's opinion
containing laws, Presumptions as to
upon matters of general interest, Presump-
tion as to.*.
BRIBE, Witness may be asked as to
Proof of
BRIBES " Accepted" substituted for " oflfered,"
by Act XVIII of 1872
BURDEN of pi'oving and disproving a fact
of proof as to a particular fact . . .
as to proof of Exceptions under Indian
Penal Code
as to fact within party's special knowledge,
in questions as to life or death ...
in questions of continuing partnership,
tenancy, agency ... ... ... 109 ll6
of proof of division of a .family lies with
the person asserting it
of ownership ...
of good faith, where confidential
relationship exists ...
in questions of legitimacy
thrown according to discretion of
the Court ...
BUSINESS, Course of
" CAPABLE of being perceived by the senses,"
meaning of ... ... 3 5
CAPACITY TO CONTRACT, In order to
avoid written contract, evidence may
be given of want of ... ... 92 97
CASES in which the Court mcvy presume a fact 4 7
in which the Court shill presume a fact 4 7
W
92
101
21
34
34
53
34
63
60
76
84
90
87
90
Introduction
52
155
154
155
155
102
113
103
113
105
114
106
^ 115
107
116
109
117
110
117
111
118
112
119
114
12i
16
27
Digitized by VjOOQIC
178 INDEX.
Sec. Page.
CAUSING hurt to extort confession ... 24 39
CAUTION as to Confession 29 41
CERTAINTY, Attainable degree of ...Introduction 2
Wliat degree of, essential to belief ... Introduction 2
CERTIFICATE under Part VI of Christiwi
Marriage Act, Sec. 54 ... ... 35 54
CERTIFIED COPIES 63,76 78,85
Introduction 30
CESTUI-QUE-TRUST 18 31
CHANGES by Contract Act, 1872, as to trans-
actions which must be in writing ... 91 94
CHARACTER as affecting damages ... 12 20
in Civil Inquiries, why irrelevant ... Introduction 23
Evidence of bad ... ... ... Introduction 25
Questions as to ... ...Introduction 50
Evidence of good ... .. ... 53 69
implies disposition as well as reputation... 55 71
Witness to, may be* cross-examined and
re-examined ... ... 140 147
may be impeached by crimi-
nating questions
Court to decide upon questions as to
CHEMICAL EXAMINER, Evidence of
CIRCUMSTANTIAL EVIDENCE
CIVIL COURT may inspect records of suits
and official documents ... ... 43 62
CIVIL PROCEDURE CODE regulates ex-
amination of witnesses ... ... 135 145
CIVIL SURGEON'S EVIDENCE, when re-
levant ... ... ... ... 45 66
CLIENT'S position how affected by giving
evidence ... ... ... ... Introduction 47
CO-ACCUSED, Effect of confession by ... Introduction 17
30 41
CO-DEBTOR, Admission of indebtedness by... 18 31
CO-HABITATION as man and wife proves
marriage unless it is otherwise dis-
proved ... ... ... ... 50 69
COLLUSION, Proof of 44 63
COMMISSIONS to take evidence 3 5
146
149
148
150
45
66
Introduction
9—10
Digitized by VjOOQIC
129
142
73
83
8
13
INDEX. 179
Sec. Page,
COMMISSIONS to take evidence in Civil and
Criminal cases ... ... — 60 76
COMMITTING MAGISTKATE, Evidence
l^ven before ... ... ... 33 52
COMMITMENTS AND CONVICTIONS on
evidence before diflferent officers ... 135 145
COMMUNICATIONS "without prejudice''
not to be received as admissions ... 23 36
for illegal purposes not protected ... 126 139
between an advocate or attorney and his
client privileged ... ... ... 126 139
between voluntary witness and legal
adviser, Rule as to disclosure of
COMPAKISON OF HANDWRITING
COMPLAINT, when Evidence
CONCLUSION, necessary in judicial in-
quiries ... ... ... ... Introduction
CONCLUSIVE effect of certain judgments... Introduction
CONCLUSIVE PROOF In
CONDITION PRECEDENT, proveable by
oral evidence
CONDUCT when relevant ...
does not include mere statements
may be explained ...
Opinion as to relationship, expressed in ...
CONFESSION should be particular
should designate time and place
retracted before trial, admissible
under threat, though not for the purpose
of extorting confession ... ... 25 39
under promise oi protection, when admis-
sible ... ... ... ... 28 40
affecting co-accused ... ... ... 30 41
CONFESSIONS Introduction 17
CONFIDENCE, Statements made in profes-
sional ... ... ... ... 129 142
CONFIDENTLA.L COMMUNICATIONS ... Introduction 48
when privileged ... ... ... 126 140
CONFIDENTIAL OVERTURES 23 36
Lction
35
4
7
92
97
8
12
8
12
9
13
60
68
24
38
24
38
24
39
Digitized by VjOOQIC
79
87
10
17
10
18
65
79
91
92
91
92
91
92
91
92
91
93
180 INDEX.
Sec. Page.
CONFIDENTIAL RELATIONSHIP, Proof
of good faith in cases of ... ... Ill 118
CONFISCATION of an impartible I^j, Pre-
sumption as to ... ... ... 114 123
CONSIDERATION of a deed, Presumption as
to
CONSPIRACY, Facts relevant to prove a ...
Difference of English and Indian Law as to
CONTENTS OF DOCUMENTS, Secondary
evidence, when admissible to prove ...
mu&t be proved by document itself
as to appointment of public officer
of Will, how proved
where contract, is contained in more than
one document
where more than one original ...
Facts, which may be proved by oral evi-
dence, though forming part of ... 91 93
Oral evidence inadmissible to contradict,
vary, add to, or subtract from ... 92 97
Separate oral agreement as to matter on
which document is silent, and not
inconsistent with it
condition precedent, proveable orally
subsequent rescission or modification,
proveable orally ...
Oral evidence to annex incidents to
Oral evidence to show person designated in
Oral evidence may be given by strangers to
vary
CONTRACT completed through a broker . . .
though in writing, varied by subsequent
oral agreement ... ... ... 92 98
Oral evidence to show illegality or other
invalidating fact attending... ... 92 97
Oral evidence to annex incidents to ... 92 98
Oral evidence to show condition precedent
to 92 ^ 98
CONTRADICTING or corroborating state-
ments under Section 33, Mode of ... 33 52
92
97
92
97
92
97
92
98
92
98
92
98
91
96
Digitized by VjOOQIC
INDEX. 181
Sec. Pa^e.
CONTRADICTION of witness' answers, Rules
as to ... ... ... ... 163 153
CONTRADICTORY STATEMENTS, Effect
of 132 144
CONVICTION, Effect of previous Introduction 19
40 58
based solely on a confession under Section
30, quashed ... 30 42
on evidence of accomplice, when to be had 133 144
COPIES OF PUBLIC DOCUMENTS, how
procurable ... ... ,.. Introduction 30
COPIES, Certified 63 78
made by mechanical process ... ... 63 78
compared with original ... ... 63 78
of judgments, Presumption as to ... 86 90
COPY OF REPORT OF INSPECTORS under
the Indian Companies' Act... ... 35 54
CORPUS DELICTI Introduction 10
CORROBORATION ... ... ... Introduction 52
Evidence of accomplice without ... 133 144
of witness ... ... ... ... 156 155
COUNSEL, Admissions by 18 29.
may be compelled to give evidence ... 126 139
COUNTERPART 62 77
COURSE OF BUSINESS, when relevant ... 16 27
Statement made in ... ... ... 32 43
Entries in ... ... 32 43
COURSE to be pursued when oral evidence is
tendered of the contents of a docu-
ment ... ... ... ... 91 97
COURT, Definition of 3 3.
Effect of Judgment of an Insolvency,
Probate, Matrimonial or Admiralty 41 59
having jurisdiction within the Province
must grant probate or letters of
Administration for Hindu Will ... 41 61
may make use of records inspected for the
purposes of the judgment ... ... 43 62
can dispense with notice to produce in any
case in which it thinks fit ... ... 66 82
Digitized by VjOOQIC
182
INDEX.
COURT OF ADMIRALTY, Presumptions
recognized by
COURTS bound to take Judicial notice of
certain facts
not bound to notice local divisions, &c.
CREDIT OF WITNESS, how to be shaken.
Sec.
114
67
67
146
CRIMINATING QUESTIONS
... Introduction
CRIMINAL PROCEDURE CODE, Examin-
ation of witnesses to be according to...
CROSS-EXAMINATION, Restrictions as to
questions that may be asked in
as to previous statements in writing
Questions on irrelevant topics, not allowed
in
Danger of asking witness his reasons for
thinking a witness untrustworthy in...
CROWD, Statements by
CUSTOM, Facts relevant to prove
Statement as to
CUSTOMARY INCIDENTS, Evidence to
annex
136
138
142
143
Page.
128
71
74
149
48
146
147
147
147
166
155
32
61
13
21
32
43
92
98
66
DAMAGES, Facts relevant to ascertain ... 12
Facts disproving malice admissible in miti-
gation of ... ... ... 12
Evidence necessary to assess ... ... Introduction
Evidence of character as affecting
DAUGHTER'S DESCENDANTS, Presump-
tion as to Testator's intention towards
DEAD PERSON, Statement of ...
DEAF AND DUMB WITNESSES, Rule as to
DEATH, Statement as to cause of
DEBT incurred by Head of family, Presumption
as to
DECISION, Improper admission or rejection
of evidence is not groundfor reversal of
DECISIONS of English Courts not binding...
DECLARATORY DECREES
DEED, Statement in
114
20
70
114
126
32
42
119
137
32
42
123
167
160
2
Introduction
2
7
32
44
Digitized by VjOOQIC
INDEX.
183
DEFAMATION, Evidence to character admis-
sible in actions for ...
DEGREES IN SECONDAKY EVIDENCE
do not exist
DENIAL, When to include refusal to admit ...
DELAY of witness
Statement of Expert, whose evidence can-
not be obtained without unreasonable
DESTRUCTION OF DUPLICATE WILL,
Presumption arising from ...
DIRECT EVIDENCE, Meaning of
Specimens of ... ... ... •..
DISABILITIES OF WITNESSES
DISCREDIT, Evidence to
DISPUTE, Statements under Section 32 must
be made before commencement of ...
DISPOSITION included in " Character" ...
DISPROVED, Meaning of
DIVORCE ACT, Opinions not evidence as
to certain matters in proceedings
under
DOCUMENT, Definition of
Oral admissions of contents of . . .
Witness summoned to produce must
bring
called for and inspected must be put in ...
Primary evidence of
to be proved by primary or secondary evi-
dence
Secondary evidence of . . .
not easily removeable. . .
of which certified copy may be granted ...
out of reach of Court's process ...
in possession of party against whom it is
to be proved
Search for a lost
required to be attested
Proof of execution of ...
Sec.
Page.
12
20
63
78
153
154
32
43
60
76
114
128
Introduction
9
Introduction
28
Introduction
5
Introduction
62
32
44
55
71
3
5
50
68
3
4
22
35
Introduction
53
162
158
Introduction
53
163
158
62
76
64
76
65
78
65
79
65
79
65
79
65
79
65
80
68
83
68
83
Digitized by VjOOQIC
Sec.
Page.
70
83
74
84
91
92
94
108
94
108
144
148
Introduction
31
130
143
126
141
162
158
114
124
29
41
32
46
184 INDEX.
DOCUMENT, Admission of execution of
Meaning of Public
Oral evidence of contents of
when dear, not to have its meaning altered
when not clear, may have its meaning shown
by evidence
How to stop oral evidence of contents of.
DOCUMENTS, Rule as to proof of...
which witnesses are not bound to produce
which can, under English Law, be proved
by certified copies ... ... ... 82 89
and title-deeds of client. Attorney's obli-
gations with regard to
to be brought to Court by witnesses
DOWER, Mahummadan, Presumption as to ...
DRUNKEN PERSON, Confession by
DYING DECLARATION
DYING STATEMENTS inadmissible unless
shown to be relevant under Section 32
or some other Section ... ... 32 46
EFFECT of admission ... ... ...Introduction 17
31 42
of an admission by a duly authorized
Vakeel ... ... ... ... 58 76
ENTRIES in diary, as evidence, in case of
suit for dissolution of marriage ... 24 -39
made by Settlement Officers, &c. ... 35 54
in course of business and statements against
interest, Distinction between ... 32 48
ENTRY by dead person need not have been
contemporaneous ... ... ... 32 46
of moneys received for a third person, what
to show ... ... ... ... 32 48
ESTOPPEL by record ... ... ... Introduction 44
by deed ... ... ... ...Introduction 44
in case of members of joint Hindu family. .. 115 132
What necessary to create ... ... 115 133
of legal representative... ... ... 115 134
Digitized by VjOOQIC
115
132
116
134
116
134
117
135
117
185
31
42
1
2
3
6
10
18
14
25
14
25
15
. 26
33
52
INDEX. 185
Sec. Page.
ESTOPPEL of person, who has caused another
to act on his representation
of tenant
of licensee ...
of acceptor of Bill of Exchange ...
of bailee ... ... ....
ESTOPPELS, Admissions may be
EVIDENCE governed by the Ux fori
What is included in ...
of conspirators in reference to the common
design
as to state of mind or body
as to state of mind or body with reference
to a particular occasion
as to whether an act was intentional or not
given at a former trial, when admissible ...
given at a former trial, how far admissible,
in absence of witness ... ... 33 52
given at a former trial,admissible only if the
question in issue is substantially the same 33 52
given in a former trial admissible only if
the question is between the same
parties in interest ...
how restricted, when it forms part of
document, conversation, &c.
All facts except contents of documents, may
be proved by oral ...
must be direct
may be given to prove that words in a
contract were inserted by mistake ... 92 99
may be given to prove a transaction un-
lawful and an agreement, conse-
quently, void
admissible to prove verbal defeazance of
written contract ... ... . ...
admissible to shew that a deed was executed
simply as an escrow, or was only
intended to be conditional ...
may, in certain cases, be given of usages or
incidents not mentioned in contract...
33
52
39
56
59
75
60
75
92
99
92
101
92
102
92
102
Digitized by VjOOQIC
186
INDEX.
Sec.
92
93
94
95
EVIDENCE may be given in explanation of
language in a deed susceptible of two
constructions
may be given to shew that an expression
is dear when taken in connection
with the facts to which it refers
admissible to explain abbreviations, &c.y
not admissible to alter clear meaning. . .
may be given in cases of inaccurate des-
cription of persons or things, to shew
who or what the person or thing is...
of author's declaration of intention, when
admissible
of previous conviction of witness
wrongly admitted or excluded, no ground
for reversal of judgment
EXHORTATIONS to speak the truth, Effect,
as to subsequent confessions, of
EXISTENCE of course of business how to be
proved ...
EXPERT'S OPINIONS how proved ... In
EXPLANATORY FACTS relevant
EXTRA-JUDICIAL CONFESSION without
corroborative evidence ... ... 24
Page.
104
107
108
109
97
110
153
153
167
160
24
37
16
27
action
30
9
15
FACT, meaning of
does not include statement
FACTS " in issue" and " relevant" ...
in issue
not in issue but relevant
forming part of a transaction
connected with but not forming part of a
transaction
which are the occasion, cause or effect of a
fact relevant or in issue
which show or constitute motion or pre-
paration ...
necessary to explain fact relevant or in issue
3
8
3
.. Introduction
5
* 6
8
9
12
3
9
8
10
11
11
12
15
Digitized by VjOOQIC
INDEX. 187
FACTS necessary to rebut or support inference 9 15
necessary to establish identity ... ... 9 15
necessary to fix time or place at nvhich fact,
relevant or in issue, happened ... 9 15
necessary to show relation of parties •. 9 15
in evidence of conspiracy ... ... 10 17
inconsistent with relevant facts... ... 11 19
which render another fact highly probable
or improbable ... ... ... 11 19
necessary to ascertaih damages ... ... 12 21
establishing right or custom ... ... 13 21
showingstateof mind or body ... ... 14 22
showing whether an act was accidental or
intentional ... ... ... 15 26
showing a course of business ... ... 16 27
which need not be proved ... ... Introduction 27
admitted in Court by parties or their agents 18 30
FALSE EVIDENCE, Punishment for giving 132 144
FOKEIGN COUNTRY, Proof of Acts of Go-
vernment of ... ... ... 78 85
Presumption as to Judicial record of ... 86 90
FOREIGN EXPRESSIONS, Evidence to ex-
plain ... ... ... ... 98 111
" FOREIGN LAW," What may be under-
stood to be included under. . .
FOREIGN JUDGMENTS
FORFEITURE, Answer exposing witness to...
FOUND, Satement of person who cannot be...
Evidence given by witness who cannot be...
FRAUD or Collusion, as affecting judgment,
how and when proveable
FRAUDULENT BILL, Presumption as to ...
FRAUDULENT or unauthorized alterations
of document render it invalid ... 62 77
45 ■
64
40
59
146
149
32
42
33
51
44
63
114
129
G
GAZETTE, Notification in
37
54
Presumption as to
81
88
Effect of Notification of Cession of
Territory in
113
120
Digitized by VjOOQIC
188
INDEX.
GENEKAL EXCEPTIONS in Indian Penal
Code, Burthen of proof as to
GENERAL SUSPICION at the time of
publication of libel how to be
considered
GOOD CHARACTEE, Evidence of
relevant in Ciiminal cases
GOOD FAITH in transactions between certain
persons, Presumption as to . . .
GOOD WILL, Facts necessary to show
GOVERNMENT OF INDIA, Act of
Act of Foreign
GRANT, Evidence of terms of
GRANT OF PROBATE of Hindu Wills . . .
where Will is lost
Sec.
[
Page.
105
114
12
20
Introduction
25
53
69
111
118
14
22
78
85
78
86
91
92
41
61
91
95
H
HANDWRITING
opinion of expert as to ...
opinion of person acquainted as to
must be proved
may be compared with proved writing ...
Court may direct person to write in order
to compare
HIGH COURT, Advocate, asking improper
question, may be reported to
HINDU AND MAHUMMADAN RULES
of evidence not binding
HINDU LAW as to necessity of document ...
Death after a certain time, presumed by ...
HINDU WIFE, Presumption as to agency of
living apart. Presumption as to husband's
responsibility for ...
HINDU FAMILIES governed by law of
origin and not by that of domicile . . .
HIRINGSERVANTS, Presumptions as to ...
HOSTILITIES, between British Government
and Foreign State to . be judicially
noticed
Introduction
32
45
63
47
66
67
83
73
84
73
84
150
152
2
2
91
94
107
116
114
123
114
123
114
123
114
132
57
73
Digitized by VjOOQ IC
189
Sec.
Page.
112
119
120
137
9
15
18
29
67
82
98
111
112
119
INDEX.
HUSBAND, Presumption of legitiinacy of
child bom during marriage of his
mother to a
and Wife are competent witnesses against
each
need not^ and, without leave, must not
disclose communications made during
marriage ... ... ... ... 122 138
IDENTITY, Facts necessary to establish ...
IDENTITY OF AGENT with principal . . .
IDENTITY OF HANDWRITING, Proof of
ILLEGIBLE TERMS, Evidence to explain ...
ILLEGITIMACY, Burthen of proof of
ILLEGALITY, Evidence to show that docu-
ment is void for ... ... ... 92 97
ILLEGAL, Conviction, grounded on uncor-
roborated evidence of accomplice, is
not necessarily ...
ILL-WILL, Facts necessary to show
IMMEDIATE EVIDENCE In
IMPARTIALITY, Evidence to impeach
witness' ...
IMPEACHING CREDIT OF WITNESS by
proof of former inconsistent statements
by proof of bad character
IMPROPER ADMISSION or exclusion of
evidence ... ... ... Introduction 55
INCOMPETENT WITNESS, Lunatic not
slw^avs
"INCONSISTENT' Meaning of Z
the meaning of, in cases where written
contract is modified by usage
INDECENT QUESTIONS ... ...In
INDIAN DIVORCE ACT, Opinion of relation-
ship not sufficient in proceedings under
INDIAN EXECUTIVE, Act of
133
144
14
22
uction
10
163
153
155
155
155
165
118
156
11
20
92
102
uction
51
151
152
60
68
78
85
Digitized by VjOOQIC
190
INDEX.
INDIAN LEGISLATURE, Act of
INDIAN PENAL CODE, General exceptions
under ••• ... ..• •••
INDIAN REGISTRATION ACT, Powers of
Attorney recognized for purposes of...
INDL^ SUCCESSION ACT
INDIRECT EVIDENCE, Specimens of
INDUCEMENT TO CONFESS, proceeding
from person in authority ...
INFIRMATIVE considerations applicable to
the probative force of confessions . . .
INSOLVENCY, Eflfect of Judgment of a Court
of
INSULTING QUESTIONS
INTENTION, Facts necessaiy to show
INTEREST, Admission by party having an ...
Statement made contrary to pecuniary or
proprietary
Meaning of ...
Books relating to matters of general
INTERPRETERS, Gerks, &c.. Rules as to
communications made to . . .
INTIMIDATION may be shown in order to
invalidate document
INTRODUCE, Facts necessary to ...
IRREBUTTABLE PRESUMPTION
ISH-NAVISI PAPERS
Sec.
78
105
127
Page.
85
114
85
90
too
112
ction
29
24
37
24
38
41
59
152
152
14
22
18
29
32
43
32
49
87
90
141
92
97
9
15
... Introduction
31
35
54
JOINT-TENANTS, PARTNERS, Admisaions
bv 1a *^i
JOINT HINDU FAMILY, Presumptions
with regard to ... ... ... 114 122
JUDGE, not compellable to answer certain
questions... ... ... ...Introduction 46
JUDGE 30 42
when compellable to answer questions as to
conduct in Court, or facts which came
to his knowledge or Court ... ... 121 138
Digitized by VjOOQIC
137
146
142
147
142
147
150
152
152
152
162
158
INDEX. 191
Sec. Page.
JUDGE must decide on relevancy of facts ... 136 145
may allow fact to be proved before another,
on which it is dependant ... ... 136 145
may allow new matter to be introduced in
re-examination
. may permit leading questions ...
shall permit some leading questions
may report Advocate asking improper
questions...
shall forbid insulting questions...
must decide on admissibility of document
may inspect document to decide on its
admissibility 162 158
ought not to ask questions or record an-
swers excluded by provisions of Chap-
ter VI 165 159
may ask questions ... ••• ... 165 159
JUDGES, what bound to know in case of Civil
war . ... ... ... ... 57 74
JUDGMENT, relevant to bar second suit ... 40 56
of Admiralty, Insolvency, Matrimonial or
Probate Court ... ... •.. 41 59
JUDGMENTS Effect of Introduction 19
in rem ... ... ... ...Introduction 20
41 60
how to be proved — ..• ... 40 » 59
relating to public matters ... ... 42 61
relevant for proving previous conviction
against a witness ... ... ... 43 63
JUDICIAL INQUIRY, Object of Introduction 1
JUDICIAL INQUIRIES, Especial difficulties
attending... ... ... ... Introduction 2
JUDICIALNOTICEto be taken of certain facts 57 71
Court may insist on production of book of
reference before taking ... ... 57 73
Court may refer to books in taking ... 57 73
JURISDICTION, Evidence may be given that
Judgment was delivered by Court
without ... ... ... ... 44 63
JURY may put questions ... ... ... 166 159
Digitized by VjOOQIC
192 INDEX.
Sec. Page.
116
134
45
63
84
89
Introduction
5
67
71
K
KNOWLEDGE, Facts necessary to show ... 14 22
LAND held in name of author, Presumption
wilih regard to ... ... ... 114 124
LAND-LORD, Tenant cannot d^y title
of
LAW, Opinion of expert as to point of Foreign
LAW BOOKS, Presumption as to ...
LAWS afifecting the discovery of truth
Judicially noticed ... . . 1
LEADING QUESTIONS, when to be
asked 142 147
in cross-examination, Eules with regard
to
LEASE, Burthen of proving discontinuance of
LEGAL ADVISEES, Communications to . . . :
LEGAL COMPULSION, Statements made
under
LEGISLATURE, Act of Indian
LEGITIMACY, Presumption as to ...
LETTERS sent to the post
^d those to which they are answers
entered in despatch book. Presumption as
to ...
between parties in a trial not protected ...
LIABILITY of an agent for another person to
estoppel ... ... ...
of man and wife to estoppel
LICENSEE, Estoppel of
LIFE, Presumption as to continuance of
LIEN OF ATTORNEY on cHents' papers ...
LIMITATION ACT, as to acquiring of abso-
lute ownership by possession
LOST DOCUMENT, how proved
" LOST," what is necessary in order to prove a
thing ... ... 65 80
143
147
109
116
Introduction
47
21
35
74
84
112
119
16
28
39
56
114
129
127
141
115
133
115
133
116
134
107 & 108
116
130
143
110
117
Introduction
31
Digitized by VjOOQIC
INDEX.
193
eec.
M
MAGISTRATE indaciog confession
not compellable to answer certain
tions
Page.
40
quea-
MAGISTRATE'S duty as to voluntary con-
fessions ...
order, unreversed, not conclusive of facts
stated therein
MAHUMMADAN WIFE against her husband,
Suit by ...
MAPS and plans when relevant
made for Government, Presumptions as to
made for purposes of any cause must be
proved to be accurate
or charts. Presumption as to authorship of
MARRIAGE AND LEGITIMACY; Pre-
sumption as to
MARRIED PERSONS giving evidence. Rule
with regard to
MATERIAL AVERMENT, Effect in England
of pleading over ... ... ...I
MATTER, of which proof may be given both
in a document and aliunde.,.
MEDICAL MAN'S evidence as to sanity of
witness
MISTAKE of law or fact provable by parol
evidence to avoid written contract ...
may sometimes be shown without reform-
ing agreement
Fraud, &c., as avoiding a contract
may be shown in resisting but not in de-
manding specific performance
MODE of proving an expert's opinion , ...
of stopping oral evidence of written con-
tracts
of proving states of mind or body
MOTHER receiving authority to manage :
Presumption as to...
Introduction
46
128
138
24
38
43
63
111
118
36
54
83
89
83
89
87
90
114
125
120
137
ntroduction
27
91
95<b96
45
65
92
97
92
99
92
99
92
100
45
66
91
97
14
25
114
126
Y
Digitized by VjOOQIC
194 INDEX.
Sec. Page.
MOTIVE, preparation or conduct of a party to
.a proceeding ... 8 12
MOVEABLE, Proof of document not easily ... Introduction 31
MUNICIPAL body in India, proceedings of
how to be proved... ... ... 78 86
MUNICIPALITIES, Contracts by 91 94
MUTILATION OF WILLS, Presumption as
to 114 128
NATIONAL FLAGS to be recognized
NATURAL PRESUMPTIONS ...
NEGLIGENCE, Facts showing existence of
relevant ••• ...
Habitual, Proof of irrelevant . . .
Presumption as to
no new trial for r^ection of evidence
NON-ACCESS ...
NOTICE TO PRODUCE
a document, how to be worded...
an agreement, in the case of seamen
in Civil cases...
rules as to, with regard to admission of
secondary evidence
NOTIFICATION of Cession of territory*
NOTIFICATIONS of Executive Government
of British India, Proof of ...
" NOT PROVED," Meaning of
NUMBER of Witnesses necessary to convic-
tion ... ... 134 144
67
73
Introduction
43
14
22
14
24
114
128
167
160
112
119
Introduction
32
66
82
66
82
66
82
66
81
113
120
78
85
3
5
8
OATHS... ... ... ... ... Introduction
OBJECT of Judicial Inquiries ... ... Introduction 1
OBSERVATIONS, unconnected with profes-
sional advice, not privileged ... 126 14C
Digitized by VjOOQIC
INDEX. 195
Sec. Page.
OCCASION or effect of facts in issue .., 7 11
OFFICE, Judicial notice must be taken of
accession of certain person& to ... 57 72
OFFICERS of a Court and officers acting in
execution of its process to be taken
judicial notice of ... ... ... 57 73
OMISSION of son's name in a Will makes
his legitimacy improbable ...
to contradict, not tantamount to admission
OPINION on relationship, when relevant ...
Grounds of, when relevant •••
OPINIONS of experts, relevant
about village rights ...
as to existence of right or custom, when
relevant ...
as to usages, tenets, &c., when relevant ...
as to constitution and Government of any
charitable or religious foundation ... 49 68
as to words used in particular districts or
by particular classes ... ... 49 68
on relationship, when relevant ... ... 50 68
ORAL ACCOUNTS of contents of documents
secondary evidence ... ... 63 78
ORAL ADMISSION with regard to the con-
tents of a document
of contents of documents inadmissible
ORAL EVIDENCE must be direct
50
66
58
75
50
68
50
69
45
63
48
67
48
67
49
67
65
80
Introduction
28
60
75
Introduction
49
Mode of excluding
all facts may be proved by, except contents
of documents ... ... ... 59 75
if in proof of existence of material thing,
Court may order production of the
thing ... ... ... ... 60 76
need not always be given in Court ... 60 76
of contents of documents containing
promises or acknowledgment in respect
of a debt... ... ... ... 65 81
in proof of the existence and terms of a
contract ... ... * ... ... 91 96
Digitized by VjOOQIC
196
INDEX.
Sec. Page
ORAL STATEMENTS of person making docu-
ment, admissible, at whatever time
made ... ... ... ... 95 109
ORDEAL, Trial by ...Introduction 5
ORDERS of Executive Gk>vemment of Lidia,
Jfroofof ... ... ... ... ' 78 86
of Her Majesty or Privy Council ... 78 85
ORIGINAL DOCUMENT, Effect of destruc-
tion of ... ... ... ... Introduction 31
OUDH RENT ACT, of 1868, necessitates a
written agreement ... ... 91 94
OWNERSHIP, Act of 13 21
Burden of proof of ... ... ... 110 117
55
18
PARLIAMENT, Acts of, to be judicially
noticed ...
Meaning of ...
Course of proceeding of
PAROL EVIDENCE as to documents
PARTICULAR previous acts affecting charac-
ter, Evidence of ...
PARTIES, Statements by, when admissions,
and when not admissions ...
agreeing orally to abide by written con-
tract, must produce contract
PARTNERS, Admissions by
PARTY proving, in his o\wi behalf, entries in
books kept by himself
to a judgment, proving his own fraud
PEDIGREE compiled from other documents,
how far admissible
PENALTY, Exposure to, through cross-exami-
nation ... ... ... ... 146
PENCIL ALTERATIONS, Presumption as to 79
PERPETUATION OF TESTIMONY ... Introduction
PERSON calling witness may ask him ques-
tions to prove his bad character ... 154
57
72
57
72
57
72
65
80
32
71
82
91
97
18
31
34
53
32<k44
43<fe63
50
149
87
8
154
Digitized by VjOOQIC
INDEX.
197
Sec.
''PERSONS CONCERNED" does not in-
elude witnesses ...
PERSUASION to confess
PLAINTIFF failing to make out his case,
Presumption as to...
PLEADING, Facts admitted by
PLEDGORS, General duties and rights of ...
POLICY OF INSURANCE
POSSESSION may dispense with necessity of
other proof
POSTING OF LETTERS, Presumption as to
POWER OF COURT to presume a fact or to
call for proof of it ...
POWERS OF ATTORNEY
PRE-APPOINTED EVIDENCE
PREPARATION, any fact proving is relevant
PRESUMPTION as to documents... . ...
in case of law-books ...
as to documents admisssible without proof
of seal ...
in case of maps
, as to certain facts
where there has been a sale of ancestral
property.*,
in case of sale of real estate by Hindd
in the name of his son
where a son imder the Mitakshara Law
sets aside sale
as to law governing Hindii families
as to religion and custom of a Hindtir family
removed to a new part of India
as to ancestral estate and division of family
as to debt incurred by head of family .*.
as to property of an undivided Hindii
family
as to agency of a Hindii wife ...
as to confiscation of an impartible Rdj •.*
as to Hindti wife living apart ...
as to agent for purdah ladies ...
as to a child's religion-..
Page.
52
69
24&28
37&40
114
128
Introduction
27
117
135
92
101
110
117
114
132
4
8
85
90
Introduction
7
8
12
Introduction
34
38
55
82
88
83
89
114
120
114
114
114
122
114
123
114
. 123
114
123
114
123
114
123
114
123
114
123
114
123
114
124
114
124
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198 INDEX.
PRESUMPTION as to Mahummadan Dower
as to lands held in name of another
when son purchases property mortgaged
by father...
as to marriage and legitimacy ...
as to testamentary document in favor of
a daughter's descendants •..
where authority is conferred by Rajah on
wife to adopt and on mother to manage
when adoption has been acquiesced in for
many years
as to Will read to Testator
as to mutilation of Wills
as to prosecutions for negligence
where the plaintiff fails to make out his case
as to Will found mutilated in Testator's
custody ...
as to destruction of duplicate Will
as to unattested alterations in Wills
as to Wills executed in several sheets
as to pencil alterations in Wills
as to Will which cannot be found
as to Bill of Lading by Vendor ... " ...
as to Punjib Settlements
as to Sanity ...
as to a bill originally fraudulent
as to party who will not appear as a wit-
. n'ess
as to letters entered in Despatch book ...
as to stamped documents
as to recent possession •. .
as to evidence by an accomplice
. in case of promissory notes
as to rent
as to Bills of Exchange
as to posting of letters
as to Agent and Trustee failing to keep
accounts...
where accused person refuses to answer
as to character ... ....
Sec.
Page.
114
124
114
124
114
124
114
125
114
126
114
126
114
127
114
127
114
128
114
128
114
128
114 ■
' 128
114
128
114
128
114
128
114
128
114
128
114
129
114
129
114
129
114
129
114
129
114
129
114
130
114
130
114
131
114
131
114
131
114
131
114
132
114
132
114
132
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INDEX.
199
PRESUMPTION as to witness refusing to
answer as to character
as to Bills which have got back into the
acceptor's hands ...
as to hiring of servants...
when legal adviser refuses to disclose
communications ...
PRESUMPTIONS of fact and presumptions
of law
" may presume," "shall presume/' " con-
clusive proof ," Meaning of...
of fact and of law ... ... ... ]
as to genuineness of certified copies of
documents
as to record of evidence
as to Gazettes
as to Government maps
as to collections of laws and reports of
decisions...
as to Powers of Attorney
as to certified copies of foreign judicial
records ...
as to books and maps ...
as to telegraphic messages
as to due execution of documents not
produced ...
as to documents thirty years old
variable according to circumstances
recognized by Court of Admiralty
which are laws
sometimes turned into Statutory laws ...
PREVIOUS Convictions why relevant
statements of parties when admissible ...
Statements reduced into writing
judgments, relevant to bar a second suit
conviction of accused, relevant in a
criminal proceeding
conviction as evidence. . .
statements in writing, Cross-examination
as to
Sec.
114
114
114
126
Page.
132
132
132
140
4
7
[ntroduction
34
79
86
80
87
81
88
83
89
84
89
85
90
86
90
87
90
88
90
89
91
90
91
114
121
114
128
114
130
114
130
Introduction 21 k 25
21
34
Introduction
50
40
56
43
63
54
70
145
148
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Sec.
Page.
153
153
10
18
iuction
30
109
116
18
28
75
84
126
&'
78
85
91
92
action
9
200 INDEX.
PREVIOUS conviction how to be proved ...
PRIMA FACIE EVIDENCE of two or more
persons conspiring, . .
PRIMARY EVIDENCE ... Ir
PRINCIPAL and agent, Presumption as to . . .
Statements by agent binding on
PRIVATE DOCUMENTS
PRIVILEGED COMMUNICATIONS mustbe
in the course of professional employment
PRIVY COUNCIL, Proclamation by, how to
be proved
PROBATE, Wills may be proved by
PROCEDURE CODE, Rules of Evidence in Introduction
PROCLAMATIONS, &a, of Her Majesty,
how to be proved ... ... ... 78 85
PRODUCTION of document by person sum-
moned to produce does not involve
personal attendance ... ... 139 147
PROFESSIONAL COMMUNICATIONS ... Introduction 47
PROMISES or acknowledgments of d^bt or
legacy to be in writing or signed ... 91 93
PROMISSORY NOTES, Presumption in caae
of 114 131
PROOF OF EXAMINATION of Civil Sur-
geon and opinion of Chemical Examiner
PROOF aliunde of consideration for a contract
need not be given of fact judicially nqjbiced
of fact admitted at the hearing ...
« PROPER CUSTODY," Meaning of
of documents thirty years old ...
PROPERTY of undivided Hindu family, Pre-
sumptions with regard to... ... 114 123
mortgaged by father and bought by son,
Presumption as to... ..• ... 114 124
PROVED, Test of when a thing is ... ...Introduction 4
Meaning of ... ... ... ... 3 4
PROVINCIAL EXPRESSIONS, Abbrevia-
tions, <fcc., Evidence as to ... ... 98 111
PROVISION wanted to enable one party to
call upon the other to admit a fact ... 58 75
45
66
91
95
56
71
58
75
81
88
90
91
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78
85
35
63
CtiOE
1 31 & 32
74
84
77
85
78
86
78
85
INDEX. 201
Sec. Page.
PUBLIC ACTS of Executive Government of
India, how to be proved ... ... 78 85
or Proceedings of Legislature in a foreign
country, how proved
PUBLIC BOOKS, Entry in
PUBLIC DOCUMENT Int:
PUBLIC DOCUMENTS
Copies of
in foreign country how proved ...
how to be proved
PUBLIC OFFICERS, Presumption as to ap-
pointment of ... ... ... 91 92
PUBLIC PROCEEDINGS of Le^tive
Council, how proved ... ... 78 85
of Municipal body in India, how proved 78 86
PUBLIC PROCLAMATIONS of Government
how proved ... ... ... 78 85
'PUBLIC AND 'GENERAL' INTEREST,
Distinction between ...' 32 49
PUBLIC or general interest. Presumptions as
to books and mattters of ... ... 86 90
PUNJAB SETTLEMENTS, Presumptions as
to 114 129
QUEEN, Order, &c. of, how proved 78 85
QUESTIONS, Judge's power to ask ... Introduction 54
arising as to jurisdiction of Crown in
places out of Her Majesty's Dominions 57 74
that may be asked in Examination-in-
chief or in Re-examination... ... 138 & 142 146 & 147
RAPE, Evidence of prosecutrix' character in
cases of ... ... ...\ ...Introduction 52
155 155
RASHNESS, Facts showing, relevant ... 14 22
z
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202 INDEX.
Sec. Page.
REASONS for considering a witness untrast-
worthy, When ... ... ... Introduction 52
for restriction of evidence of bad character 54 70
"REASONABLE GROUNDS" for asking
questions relevant only as to witness'
character... ... •-. .•• 149 152
REBUT evidence of good character, Evidence
to ... ... ••• ••• Introduction 26
REBUTTABLE PRESUMPTION Introduction 34
RECEIPT though in writing may be proved
orally ... ... 91 ^3
RECENT POSSESSION, Presumption as to. . . 1 14 130
RECITAL of fact in Act of Governor in
Council 37 55
RECITALS in a Deed when admissible ... 21 35
RECORD OF TITLE ... ... .. Introduction 7
" REDUCED to the form of a document,"
Meaning of 91 94
RE-EXAMINATION 137 146
REFRESHING MEMORY Introduction 53
documents for the purpose of, need not
be stamped or registered ... ... 159 157
documents for the purpose of, need not
have been made by witness himself... 159 157
REFUSAL of legal adviser to disclose com-
munications. Presumption as to ... 126 140
to give evidence. Punishment of ... 132 144
to give evidence or produce dociunents
renders witness liable to suit for
damages ... ... ... ... 132 144
of witness to answer. Power of Court with
regard to... ... ... ... 148 l5l
REGISTERS AND OFFICIAL BOOKS, ad-
missible without proof of their authen-
ticity 82 89
REGISTRATION ACT Introduction 7
REGISTRATION, Counteracts, Eflfect of sub-
sequent oral agreement ... ... 92 98
REGULATIONS of Queen or Privy Council
how to be proved ... ... ... 78 85
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60
68
-55
8-71
5
8
INDEJC. 203
Sec. Page.
RELATIONSHIP, not necessary to the ad-
missibility of statement as to relation-
ship ... ... ... ... 32 50
Relevancy of opinion expressed in conduct,
asto
RELEVANCY OF FACTS
RELEVANT, Meaning of
See " Fad^'
RELEVANT FACTS Intro. 10—12 k 13—26
RELIGION and customs of HindCi family
removed to new part of India, Pre-
sumption as to
of a child : Presumption as to ...
RENT, Presumptions as to. . .
REPORTS of Rulings of Courts, when relevant
Presumptions as to
REPRESENTATIVES, Statements by, when
admissions
REPUTATION as affecting damages
res judicata
responiJent and co-respondent...
" RESULT" implies actual figures and facts...
RIGHT or custom in particular places or on
particular occasions ... ... 13 21
of witness to be cross-examined on docu-
ments to refresh memory seen by
adverse party ... ... ... 161 157
RULE of the road on land or at sea ... 57 73 & 74
in England and in India as to deeds in
proper custody ... ... ... 90 92
RULES OF PROOF, The two Cardinal ... Introduction 28
RULES to govern admission of evidence as to
character... ... ... ... Introduction 51 <k 52
of Evidence in Non-Regulation Provinces 2 2
s
SALE set aside by son under Mitakshara Law,
Presumption as to ... ... ... 114 122
of ancestral property, Presumptions as to 114 122
114
123
114
124
114
131
38
55
84
89
18
29
55
70
Introduction
21
30
42
65
81
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204 INDEX.
SANITY, Presumption as to
" SCIENCE OR ART,^ what they include
SCIENTIFIC INQUIRY, Judicial compared
with ... •••
SEA, Rule of the road at
SEALS of which the English Courts take
judicial notice
SEARCH for missing witness
for missing document ...
SECONDARY EVIDENCE, Meaning of
Documents which may be proved by
No degrees of...
SECRECY, Promise of
SECTION 9 of Foreign Jurisdiction and Ex-
tradition Act
SECTION 2 of C. P. C, with regard to pre-
vious judgments barring second suit..
SHIFTING of burthen of proof
SIGN-MANUAL OF SOVEREIGN
SIGNATURES how to be proved ...
SILENCE, when relevant
SOLICITOR common to two parties, commu-
nications made to when privileged ... 126 140
SOVEREIGN, Accession and Sign-Manual of
to be officially noted
"SPECIALLY SKILLED," how understood
STAMPS AND REGISTRATION
STAMPED DOCUMENTS, Presumption as
to ...
STATE OF MIND or body. Admission as to... Introduction
Sec.
Page.
114
129
45
64
Introduction
2
67
73&74
57
73
32
42
65
7S
63
77
65
78
63
78
29
40
33
52
40
57
Introduction
41
57
72
45
65
8
14
knowledge, &c.
STATE OF BODY OR MIND, Relevancy of
facts showing
STATE OF THINGS included in " fact" ...
STATES, Evidence as to aflFairs of
STATEMENT by conspirators
showing state of mind or body : State-
ments by deceased persons and others :
former statements of witnesses ... 8 14
57
72
45
65
61
76
114
130
action
18
21
33
14
25
14
22
3
3
123
138
8
14
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8
14
18
31
18
31
32
47
32
46
INDEX. 205
Sec. Page.
STATEMENT made to or in presence of party
whose conduct is in question must be
shown to affect such conduct ... 8 15
made to or in presence of party whose
conduct is in question. ''He who
keeps silence consents"
of a representative before he became such
by person from whom interest is derived...
by dead person when made by entry or
otherwise in course of business
by a dying child of tender years
by a dead person must be more than a
mere expression of assent ... ... 32 46
of a deltd person as to the cause of death,
or as to any circumstances connected
with it ... ..• ... ... 32 46
made by dead person in course of business
need not be based on personal know-
ledge of the fwit ... ... ... 32 47
which would have exposed a man to
Criminal prosecution ... ... 32 48
by dead persons when against the interest
of the maker ... ... ... 32 48
by a person acknowledging the payment
of money to himself when to be r^^d-
ed as against his interest ... ... 32 48
charging a person with receipt of money
is against his interest ... ... 32 48
' made' by a person need not actually have
been written by him .., ... 32 49
by dead persons when of public or g^eral
interest ...
by dead person when to have been made...
made by a crowd
contained in affidavit ...
STATEMENTS so far as they accompany and
explain acts
not always equivalent to conduct
by witness who cannot be inroduced ... Introduetioa
made under special circumstances ... Introduction
32
49
32
50
32
51
33
52
8
14
8
12
etioa
19
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Sec.
Page.
17
28
18
29
18
29
19
32
20
32
32
44
32
44
206 I iJ D E X.
STATEMENTS when admissions
by parties suing in representative capacity
by Agent
by persons having an interest in the sub-
ject-matter of the proceeding ... 18 29
by persons whose position it is necessary
to prove ...
made by person expressly referred to
as to existence of relationship ...
contained in Wills, dsc, relating to pedigree
in documents relating to transactions
affecting rights ... ... ... 32 44
by other persons of contents of documents,
Oral evidence as to ... ... 144 148
Cross-examination of witness as to former 145 148
reduced to writing must be shown to wit-
ness before proof for purpose of con-
tradiction ... ... ... 145 148
Impeachment of witness' credit by proof of
former inconsistent ... ... 155 154
made under Section 32, Evidence to con-
tradict or corroborate ... ... 158 156
STATUTORY PRESUMPTIONS belong not
to Law of Evidence but to ordinary law 114 130
SUBSEQUENT ORAL CONTRACT may set
aside a deed except in specified cases... 92 102
SUBTRACTING from contents of document,
oral evidence, inadmissible for pur-
pose of ...
SUCCESSION ACT, Proof of Wills under ...
SUIT for perpetuation of testimony
SURGEON, Evidence of Civil
T
TECHNICAL MEANINGS, and words used
in a peculiar sense... ... ... 98 111
or local expressions, abbreviations and
words used in a particular sense,
Opinions as to ... ... ... 49 68
92
97
91
93
... Introduction
8
45
66
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91
96
109
116
116
134
133
144
49
68
INDEX. 207
Sec. Page.
TELEGRAMS, Presumption as to ... ... 88 90
TEMPORAL BENEFIT, Confession induced
by hope of ... ... ... 24 37
TENANCY, partnership or agreement to
sell goods on commission may be
proved by oral testimony ...
Burden of proof of discontinuance of
TENANT AND LANDLORD Estoppel of ...
TENDER OF PARDON to accomplice
TENETS of body of men. Opinion as to
TESTAMENTARY disposition of property,
when to be in the form of a document 91 93
TESTIMONY, Suits for the perpetuation
of ... ... ... ... Introduction 8
to facts in documents known to be correct
may be received ... ... ... 160 157
THREE considerations in receiving extrinsic
evidence ... ... ... ... 92 100
ways of proving handwriting ... ... 47 67
THREAT, vitiates confession ... ... 24 37
TIME and circumstance of admission ... 18 31
TITLE, Tenant is estopped from denying
Landlord's 116 134
TITLE-DEEDS, Witness cannot be compelled
to produce ... ... ...Introduction 48
Obligation of witness to state contents of.. 130 143
Obligation of witness to produce... ... 130 143
TORTURE Introduction 5
TRANSLATOR, Court may enjoin secrecy on 162 158
TRUSTEE OR AGENT failing to keep
accounts. Presumption as to ... 114 132
u
UNINTELLIGIBLE TERMS, Evidence to
explain ... ... ... ... 98 111
USAGE of trade. Intention of parties to
exclude ... ... ... ... 92 104
evidence to annex to contract ... ... 92 98
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208
INDEX.
Sec.
Page.
VAKIL, Professional communications made to
Admission by...
VAKILS, Clerks and servants of ...
Party calling as witness
Witness need not disclose communications
with
VOLUNTARY EVIDENCE does not in-
volve loss of privilege
w
126
139
18
30
127
141
128
142
129
128
WARNING, Confession not invalidated by
absence of
WIFE acting as agent for husband ...
receiving authority to adopt, Presumption
as to
may give evidence against husband
need not disclose communications made
by husband
WILL, Proof of
WILLS, Evidence Act does not affect provi-
sions of Indian Succession Act as to
construction of ...
read tp Testator, Presumption as to ...
executed in several sheets, Presumptions
as to ••• ..• ... •••
not to be found. Presumption as to
mutilated in Testator's custody, Presump-
tion as to***
unattested alterations in. Presumptions as
to
WITNESS refusing to appear. Presumption as
m) ••• ••* *.. ...
refusing to answer to character, Presump-
tion as to ••• •*• 114
WITNESSES, Exclusion of Introduction
when not compellable to answer ... Introduction
must answer criminating questions ... Introduction
18
114
120
122
91
100
114
114
114
114
114
114
142
142
41
30
126
137
138
92
112
127
128
128
128
128
129
132
5
46
48
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Sec.
Page.
118
136
118
136
118
136
114
136
118
136
118
136
119
137
118
136
118
136
INDEX. 209
WITNESS compelled to produce documents ...
compelled to come to court
compelled to speak the truth ...
compelled to accept service of summons ...
who is competent to be
Lunatic, when not incompetent to be
Dumb
who objects to Oath may affirm. . .
Hindu or Muhammadan shall affirm
may offer to be bound by oath under Oaths
Act, 1873... ... ... ... 118 136
liable to damages for refusal to give evi-
dence
Accused person cannot be
Husband and wife may be
in Divorce ca^es
Judge or Magistrate when a
need not disclose communications during
marriage...
as to affairs of State ...
as to official communications ...
Magistrates and Police Officers need not
disclose sources of information ... 125 139
Barristers and Attorneys not to disclose
professional communications
not protected as to certain matters
giving evidence in his own case does not
consent to disclosure of professional
communications ...
need not disclose communications with
legal adviser
not a party, need not produce title-deeds
or criminating document ...
parties to suit not protected from
producing documents
need not produce document, production of
which another party might rightly
refuse
not excused from answering criminating
questions...
118
136
118
137
120
137
120
137
121
138
122
138
123
138
124
138
126
139
126
139
128
142
129
142
130
143
130
143
131
143
132
A
143
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Sec.
Page.
132
144
133
144
134
144
135
145
210 INDEX.
WITNESSES giving false evidence...
Accomplices can be
no necessity for particular number of
Order of examination of
Examination-in-chief, cross-examination
and re-examination of ... ... 137 146
Persons summoned to produce documents
do not become
to character ...
giving evidence as to contents of document
may be cross-examined as to previous
statements
as to veracity...
as to position in life ...
in order to shake credit
Proper questions to credit to be put to ...
answering questions to credit cannot be
contradicted
Impeachment of credit of
Hostile
Corroboration of
may refresh memory ...
may when experts consult professional
treatises ... ... ... ... 159 157
may be cross-examined on papers referred
to for refreshing memory ... ... ](ji 157
must bring document to Court notwith-
standing objection to its production..
WRITING, when obHgatory
Documents required by law to be in
Oral evidence inadmissible to vary con-
tract required by law to be in ... 92 98
WOEDS used in a peculiar sense, Evidence to
show meaning of ... ... ... 98 111
139
147
140
147
144
148
145
148
146
149
146
149
146
149
148
150
153
153
155
154
154
154
156
155
159
156
162
Introduction
158
7
91
93
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THE INDIAN CONTRACT ACT,
NO. IX OF 1872,
TOOETHEB WITH AN
INTRODUCTION AND EXPLANATORY NOTES, TABLE OF CONTENTS,
APPENDIX, AND INDEX.
BY
H. S. CUNNINGHAM, M. A.,
BAKRISTER-AT-LAW, ADVOCATE GENERAL OP MADKAS
AND
H. H. SHEPHARD, M. A.,
BARRISTRR-AT-LAW.
MADRAS :— HIGGINBOTHAM & Co.
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THE
CODE OF CRIMINAL PROCEDURE,
TOGETHER WITH THE LA.WS RELATING TO
EXTRADITION, POLICE, AND PRISONER, &c.:
BEING
A COMPLETE MANUAL OP THE LAW OF PROCEDURE
NECESSARY FOR POLICE AND MAGISTERIAL *
ENQUIRIES.
WITH
EXPLANATORY NOTES.
BY
CAPTAIN E. NEWBERY,
PERSONAL ASSISTANT TO THE INSPECTOR-GENERAL OF POLICE, PUNJAB.
CALCUTTA :— THACKER, SPINK & Co.
Bombay -.-THACKEE, VINING & Co. Madras:— HIGGINBOTHAM& Co. ,
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